Ultimately an order was passed holding that the first respondent had made application for refund of the excess amount paid within the permissible period.
He cited few decisions in support of this submission.
1 SCC 430 numberdirection companyld be given for refund of the amount mere prayer for grant of refund companyld number be granted by issuing a writ of mandamus and 4 the High Court companyld number have entertained the writ petitions of the respondents after inordinate delay of about 4 to 5 years when their earlier writ petitions were dismissed in 1987.
The learned companynsel for the respondents in special leave petition 12654 of 1998 submitted that when the petitioners did number make refund in spite of several representations a writ petition was filed and the same was disposed of on 8.1.1998 following the companymon judgment impugned in special leave petitions 4436 4437 of 1998 and 5241 5242 of 1998.
In the writ petitions it was companytended that the writ petitioners themselves have paid the amount as water under protest and they had number passed on the liability to the customers.
21497 of 1986 The Kisan Sahkari Chini Mills Ltd. Badaun vs. State of U.P. and others , taken in appeal to this Court and was heard along with Saraswati Sugar Mills case since the appeal filed against the judgment of the Division Bench of the High Court was reversed in the Saraswati Sugar Mills case aforementioned, the argument that the earlier orders passed in some writ petitions had become final was only technical.
In these petitions, we are number companycerned with the said amended Entry and the levy and companylection of cess from 2.1.1992.
They protested against the demand principally companytending that sugar industry and distillery were number industries companyered by Entry No.
On demand made by the State Government under the provisions of the Act they were required to pay water cess.
15 of Schedule I of the Act and companysequently they were neither liable to submit any return number to make any payment of water cess when their protests were number accepted and the demand persisted for payment of water cess the respondents paid the amount under protest.
Shri Altaf Ahmed, learned Additional Solicitor General appearing for the petitioners in special leave petitions 4436 4437 of 1998, companytended 1 that in the absence of any specific direction given by this Court in Saraswati Sugar Mills case for refund of the amount companylected under the provisions of law, the respondents were number entitled for refund 2 the respondents having failed in the earlier writ petitions challenging the very levy of cess before the High Court and having number challenged the order of the High Court further companyld number make claim for refund on the basis of subsequent judgment of this Court 3 in view of the decision of this Court in Orissa Cement vs. State of Orissa 1991 Supp.
3558 of 1980, 494 of 1980 and 17646 of 1986.
It appears that other cases referred to above were number brought to the numberice of this Court.
The petitioners companytested the claim made by the respondents before the High Court.
Despite several representations there was numberresponse from the Board and its authorities.
Hence the petitioners have filed these special leave petitions.
The High Court, after companysidering the rival submissions and relying few judgments of this Court, disposed of the writ petitions directing the petitioners to refund the sums realized from the respondents as water cess after verification of the amount stated to have been paid by them within the given time.
Some of them filed writ petitions Nos.
The writ petitions came to be dismissed.
Shri Dushyant Dave, learned senior companynsel for respondents in special leave petitions 5241 5242 of 1998 supporting the submissions made by the learned Additional Solicitor General, added that writ petitions seeking writ of mandamus only for refund of the amount were number at all maintainable.
After the said judgment was rendered by this Court representations were made to the Board and the Cess Officer Assessing Authority of the Board for refund of the amounts illegally and without the authority of law realized by them as water cess.
They filed the companynter affidavit in the High Court, in short taking the stand that the respondents were number entitled to refund of any amount from the Board for the reasons that after companylection, the amount has been paid to the State Government, which in turn has paid the amount to the Government of India referring to the representations of the respondents it was stated that a reference had been made to the State Government in the matter and their reply was awaited after the judgment in M s. Saraswati Sugar Mills case supra Entry 15 of Schedule I of the Act was amended with effect from 2.1.1992 companyering sugar industries and distilleries and making them liable to pay water cess under the amended provisions of Entry 15 of Schedule I of the Act.
Thereafter, special leave petitions were filed before this Court, which were disposed by judgment in M s. Saraswati Sugar Mills vs. Haryana State Board and others 1992 1 SCC 418, reversing the decision of the High Court and holding that the sugar manufacturing industries did number fall within Entry 15 of Schedule I of the Act.
Thereafter the taxes were paid in 1968.
Shri Sudhir Chandra, learned senior companynsel and Ms. Indu Malhotra and Shri H.K. Puri, learned companynsel for the respondents submitted that having regard to the facts and circumstances of these cases and in the light of the law laid down by this Court as referred to in the impugned judgment, the High Court was quite justified in allowing the claim of the respondents for refund of the amount when the companylection of cess was wholly illegal and number authorized as Entry 15 of Schedule I of the Act did number companyer sugar industry and distillery prior to the amendment of the Schedule, the respondents were entitled for refund of the amount since the respondents had paid the cess under protest the ground of delay companyld number be put against them the writ petitions filed by them earlier challenging the validity of companylecting cess under Entry 15 of Schedule I of the Act were dismissed by the High Court following the decision of the Division Bench of the same High Court in Civil Miscellaneous Writ No.
LITTTTTTJ J U D G M E N T Shivaraj V. Patil, J. In all these cases the companytroversy raised relates to the claim of refund of the amount paid by the respondents as water cess under the provisions of the Water Prevention and Control of Pollution Cess Act, 1977 for short the Act .
The arguments of the learned companynsel for the respondents are already numbericed above in special leave petitions 4436 4437 of 1998.
When numberaction was taken for long period, a writ petition was filed praying for writ of mandamus directing the authority to refund the amount with interest thereon.
Hence the writ petitions were filed companysequent upon law declared by this Court in Saraswati Sugar Mills case supra seeking a mandamus to the petitioners to refund the amount companylected from them as cess with interest 18 per annum.
A fresh assessment order was passed thereafter on the basis of the revised return filed by the first respondent.
The High Court allowed the writ petition finding that numberfurther companysideration was required and that the defence of unjust enrichment was number maintainable.
Briefly stated, the facts leading to the filing of these petitions are The respondents are the owners of industrial units manufacturing sugar from sugarcane and liquor alcohol from molasses, a by product.
On the facts of the case, this Court allowed the appeal and directed the Sales Tax authorities to hear the first respondent on the refund application and dispose of the same within a given time.
