Case: Union Of India  Vs. M/S. Orient Enterprises &amp;Anr

(supra) this Court has laid down that a writ petition under Article 226 of the Constitution solely praying for the issue of a writ of mandamus directing the State to refund the money is not ordinarily maintainable for the simple reason that a claim for such a refund can always be made in a suit against the authority which had illegally collected the money as a tax. This Court has made a distinction between a direction for refund given by way of consequential order in a case where the legality of the assessment is questioned and a case where the petition is only for the purpose of seeking refund. It has been observed:- "We do not consider it proper to extend the principle justifying the consequential order directing the refund of amount illegally realised, when the order under which the amount had been collected has been set aside, to cases in which only orders for the refund of money are sought. The parties had the right to question the illegal assessment orders on the ground of their illegality or unconstitutionality and, therefore, could take action under Article 226 for the protection of their fundamental right and the Courts, on setting aside the assessment orders, exercise their jurisdiction in proper circumstances to order the consequential relief for the refund of the tax illegally realised. We do not find any good reason to extend this principle and, therefore, hold that no petition for the issue of a writ of mandamus will be normally entertained for the purpose of merely ordering a refund of money to the return of which the petitioner claims a right." The Court has emphasised that there was no legal right in the appellant who had filed the writ petition to claim the refund under the relevant statute.7. In the present case also till the insertion of Section 27-A in the Act by Act 22 of 1995 there was no right entitling payment of interest on delayed refund under the Act. Such a right was conferred for the first time by the said provision. Act 22 of 1995 also inserted Section 28-AA which provides for payment of interest on delayed payment of duty by a person who is liable to pay the duty. Thus at relevant time there was no statutory right entitling the respondents to payment of interest on delayed refund and the writ petition filed by them was not for the enforcement of a legal right available to them under any statute. The claim for interest was in the nature of compensation for wrongful retention by the appellants of money that was collected from the respondents by way of customs duty, redemption fine and penalty. In view of the law laid down by this Court in Suganmal (supra) a writ petition seeking the relief of payment of interest on delayed refund of the amount so collected could not, in our opinion, be maintained. The decisions on which reliance has been placed by Shri Rawal were cases where the legality of the orders requiring payment of tax or duty were challenged and the High Court in exercise of its jurisdiction under Article 226 of the Constitution, while setting aside the said orders, has directed the refund of the amount so collected with interest. The direction for payment of interest in these cases was by way of consequential relief along with the main relief of setting aside the order imposing the tax or duty. Those cases stand on a different footing and have no application to the present case. The appeal is, therefore, allowed, the impugned judgment of the High Court is set aside and the writ petition filed by the respondents before the High Court is dismissed. No order as to costs.Civil Appeal No. 914/92.8. Elephanta Oil & Vanaspati Industries, respondent No. 1 herein, was earlier known as M/s. Jain Sudh Vanaspati Ltd. The said respondent had imported inedible Beef tallow. The Collector of Customs, Bombay, after issuing show cause notice to the respondent passed the order dated May 28, 1998 whereby he held that the goods imported by the respondent were liable for confiscation as the import was contrary to the provisions of the Import Policy and gave option to the respondents to redeem the same on payment of redemption fine of Rs. 1,09,60,000/-. The respondent deposited the said redemption fine and obtained the delivery of goods. The appeal filed by the respondent-company against the said order of the Collector was allowed by the Tribunal by judgment dated February 14, 1990. Special Leave Petitions Nos. 14605 and 14606/90 filed by the Revenue against the said judgment of the Tribunal were dismissed by this Court by order dated November 19, 1990. The amount of Rs. 1,09,60,000/- which was deposited by the respondent-company was refunded to them in two instalments on January 29, 1991 and March 6, 1991. Thereafter on May 31, 1991, the writ petition which has given rise to this appeal was filed by the respondents in the Delhi High Court. In the said writ petition the respondents sought the relief of payment of interest on the amount of Rs. 1,09,60,000/- from the date of deposit of the said amount till the date of refund @ Rs. 17.5% per annum or on such rate of interest not less than 12% per annum. The said writ petition of the respondents has been allowed by the High Court by the impugned judgment dated November 11, 1991 and the High Court has directed the appellants to pay to the respondents interest @ Rs. 17.5% per annum on the amount of Rs. 1,09,60,000/- from the date of deposit of the said amount till it was refunded.9. While dealing with Civil Appeal No. 3374/91 we have held that a writ petition seeking relief of interest in respect of the amount deposited towards redemption charges under an adjudication order which amount had been refunded after the said order was set aside could not be maintained under Article 226 of the Constitution of India.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]6. In Suganmal (supra) this Court has laid down that a writ petition under Article 226 of the Constitution solely praying for the issue of a writ of mandamus directing the State to refund the money is not ordinarily maintainable for the simple reason that a claim for such a refund can always be made in a suit against the authority which had illegally collected the money as a tax. This Court has made a distinction between a direction for refund given by way of consequential order in a case where the legality of the assessment is questioned and a case where the petition is only for the purpose of seeking refund. It has beendo not consider it proper to extend the principle justifying the consequential order directing the refund of amount illegally realised, when the order under which the amount had been collected has been set aside, to cases in which only orders for the refund of money are sought. The parties had the right to question the illegal assessment orders on the ground of their illegality or unconstitutionality and, therefore, could take action under Article 226 for the protection of their fundamental right and the Courts, on setting aside the assessment orders, exercise their jurisdiction in proper circumstances to order the consequential relief for the refund of the tax illegally realised. We do not find any good reason to extend this principle and, therefore, hold that no petition for the issue of a writ of mandamus will be normally entertained for the purpose of merely ordering a refund of money to the return of which the petitioner claims aCourt has emphasised that there was no legal right in the appellant who had filed the writ petition to claim the refund under the relevant statute.7. In the present case also till the insertion of Section 27-A in the Act by Act 22 of 1995 there was no right entitling payment of interest on delayed refund under the Act. Such a right was conferred for the first time by the said provision. Act 22 of 1995 also inserted Section 28-AA which provides for payment of interest on delayed payment of duty by a person who is liable to pay the duty. Thus at relevant time there was no statutory right entitling the respondents to payment of interest on delayed refund and the writ petition filed by them was not for the enforcement of a legal right available to them under any statute. The claim for interest was in the nature of compensation for wrongful retention by the appellants of money that was collected from the respondents by way of customs duty, redemption fine and penalty. In view of the law laid down by this Court in Suganmal (supra) a writ petition seeking the relief of payment of interest on delayed refund of the amount so collected could not, in our opinion, be maintained. The decisions on which reliance has been placed by Shri Rawal were cases where the legality of the orders requiring payment of tax or duty were challenged and the High Court in exercise of its jurisdiction under Article 226 of the Constitution, while setting aside the said orders, has directed the refund of the amount so collected with interest. The direction for payment of interest in these cases was by way of consequential relief along with the main relief of setting aside the order imposing the tax or duty. Those cases stand on a different footing and have no application to the present case. The appeal is, therefore, allowed, the impugned judgment of the High Court is set aside and the writ petition filed by the respondents before the High Court is dismissed. No order as to costs.Civil Appeal No. 914/92.8. Elephanta Oil & Vanaspati Industries, respondent No. 1 herein, was earlier known as M/s. Jain Sudh Vanaspati Ltd. The said respondent had imported inedible Beef tallow. The Collector of Customs, Bombay, after issuing show cause notice to the respondent passed the order dated May 28, 1998 whereby he held that the goods imported by the respondent were liable for confiscation as the import was contrary to the provisions of the Import Policy and gave option to the respondents to redeem the same on payment of redemption fine of Rs. 1,09,60,000/-. The respondent deposited the said redemption fine and obtained the delivery of goods. The appeal filed by the respondent-company against the said order of the Collector was allowed by the Tribunal by judgment dated February 14, 1990. Special Leave Petitions Nos. 14605 and 14606/90 filed by the Revenue against the said judgment of the Tribunal were dismissed by this Court by order dated November 19, 1990. The amount of Rs. 1,09,60,000/- which was deposited by the respondent-company was refunded to them in two instalments on January 29, 1991 and March 6, 1991. Thereafter on May 31, 1991, the writ petition which has given rise to this appeal was filed by the respondents in the Delhi High Court. In the said writ petition the respondents sought the relief of payment of interest on the amount of Rs. 1,09,60,000/- from the date of deposit of the said amount till the date of refund @ Rs. 17.5% per annum or on such rate of interest not less than 12% per annum. The said writ petition of the respondents has been allowed by the High Court by the impugned judgment dated November 11, 1991 and the High Court has directed the appellants to pay to the respondents interest @ Rs. 17.5% per annum on the amount of Rs. 1,09,60,000/- from the date of deposit of the said amount till it was refunded.9. While dealing with Civil Appeal No. 3374/91 we have held that a writ petition seeking relief of interest in respect of the amount deposited towards redemption charges under an adjudication order which amount had been refunded after the said order was set aside could not be maintained under Article 226 of the Constitution of India.