JUDGMENT :- Plaintiff in O. S. No. 268 of 1982 on the file of the Court of Additional Sub-Judge, Cochin, is the appellant. Suit was for recovery of money. 2. Plaintiff had called for quotations for the purchase of tractors and among the various parties the defendant submitted its quotation for the supply of tractor as specified in the tender notice. After communication between the parties, a purchase order accepting the quotation of the defendant was issued subject to the terms and conditions mentioned therein. Ext. A 1 dated 6-1-1979 is the purchase order issued by the plaintiff to the defendant. Defendant supplied the tractors and payment was effected on 13-11-1979 to the defendant towards the value as per the bill. In the bill issued by the defendant, excise duty at 12 1/2% and 5% special excise duty on basic excise duty were added. Plaintiff averred that on enquiry it was disclosed that the defendant had actually paid the excise duty on a concessional rate and that the actual amount paid by them towards the supply order mentioned was Rs. 32,564.11 ps., as disclosed from the gate pass No. 3006 dated 28-1-1979 issued by the Central Excise Department. An excess amount of Rs. 11,034.51 was illegally and improperly levied in the bill issued by the defendant and the plaintiff was forced to pay the same at the instance of the defendant. The defendant was not entitled to get the said excess amount. Ext. A1 stipulated payment of excise duty only at actuals. 3. In the written statement, the defendant admitted the supply of motor vehicles. However, it was contended that the defendant was entitled to collect all duties and taxes applicable to the transaction from plaintiff, that the excise duty payable at the relevant time on the motor vehicles supplied by the defendant was computed at the statutory rate and that the special excise duty also was recovered according to law. However, it was contended that the defendant was entitled to collect all duties and taxes applicable to the transaction from plaintiff, that the excise duty payable at the relevant time on the motor vehicles supplied by the defendant was computed at the statutory rate and that the special excise duty also was recovered according to law. According to the defendant independently of the contract between the plaintiff and the defendant and by virtue of the statutory notification issued by the Government of India under the Central Excises and Salt Act, the defendant was entitled to retain for itself an amount representing 25% of the excise duty payable in respect of the motor vehicles cleared in excess of the quantities in a particular year, and that in the circumstances the plaintiff was not entitled to get back the amount claimed in the plaint. 4. The court below dismissed the suit holding that the plaintiff was not entitled to get refund of the excess amount paid. 5. In this appeal, learned counsel for the appellant has challenged the findings of the learned Subordinate Judge. In order to appreciate the contention raised by the parties it is necessary to refer to Condition No. 2 of terms in Ext. A1. It reads as follows : Excise duty, Central Sales Tax, Delivery charges, Insurance charges and all other duties/taxes as applicable will be paid extra at actuals by the Port Trust." Learned counsel submitted that the interpretation put on the above condition in Ext. A1 by the court below is wrong, that the plaintiff's case would squarely fall under S. 72 of the Indian Contract Act and that therefore the plaintiff is entitled to a decree as prayed for. 6. Learned counsel for the appellant submitted that this condition would mean that the appellant was liable to pay only the excise duty actually paid. On the other hand, learned counsel for the respondent would contend that "expression Excise duty .... as applicable will be paid at actuals by Port Trust" would mean that the actual excise duty payable on the goods under the statutory provision shall be paid by the appellant and not the actual excise duty paid on the goods supplied. On the other hand, learned counsel for the respondent would contend that "expression Excise duty .... as applicable will be paid at actuals by Port Trust" would mean that the actual excise duty payable on the goods under the statutory provision shall be paid by the appellant and not the actual excise duty paid on the goods supplied. According to the learned counsel, under item 34 A to Schedule I of the Central Excises and Salt Act 1944, excise duty payable on the goods is at the rate of 20% ad valorem besides the additional excise duty and that the circumstance that as a result of the performance of the defendant, the defendant was entitled to concessional rate under the notification and that the defendant paid the duty only at the concessional rate will not affect the liability of the plaintiff under Condition No. 2. The controversy centres round on the question whether in view of the Condition in Ext. A1, the defendant was entitled to collect anything more than what was actually paid by the defendant as excise duty on the materials supplied to the plaintiff or the expression 'at actuals' employed in Condition No. 2 in the context would mean that the plaintiff was liable to pay the amount of actual duty applicable in respect of the goods. The court below accepted the interpretation sought to be put on this clause by the learned counsel for the respondent. After going through the condition in Ext. A1 carefully, I am unable to agree with this conclusion of the lower court. I am inclined to accept the argument of the learned counsel for the appellant and to hold that the plaintiff is liable to pay excise duty, central sales tax, delivery charges, insurance charges and all other duties/taxes as are applicable in respect of the goods under the statutory provisions to the extent of actual payment made by the defendant. Otherwise I do not find any reason for employing the expression "at actuals" in condition No. 2 of the conditions. If the plaintiff is liable to pay the excise duty and other duties mentioned above at the rate applicable to the goods in the Statutes then the expression "will be paid extra at actuals" would be superfluous and redundant. Otherwise I do not find any reason for employing the expression "at actuals" in condition No. 2 of the conditions. If the plaintiff is liable to pay the excise duty and other duties mentioned above at the rate applicable to the goods in the Statutes then the expression "will be paid extra at actuals" would be superfluous and redundant. In my view the employment of expression 'at actuals' could only mean to the extent to which such duties are actually paid. The concessional rate enjoyed by the defendant is on the basis of a statutory notification and the burden that can be shifted to the plaintiff would only be to that extent in view of the Condition No. 2 in Ext. A1. 7. Learned counsel for the appellant invited my attention to the averment in paragraph 3 of the written statement that independently of the contract between the plaintiff and the defendant and by virtue of certain statutory notifications issued by the Government of India under the Central Excises and Salt Act the defendant was entitled to retain for itself an amount representing 25% of the excise duty payable in respect of the motor vehicles cleared in excess of quantities in a particular year. He also submitted that no republication was filed challenging this averment. From the notification and the pleadings what could appear is only that the defendant is entitled to a concessional rate in payment of excise duty in respect of the motor vehicles cleared in excess of the quantity in a particular year. It may be that it is by reason of the fact that vehicles were cleared by the defendant in excess of the quantity in a particular year that the concessional rate was granted to the defendant. But for that reason, it cannot be said that the plaintiff was liable to pay the excise duty at the rate ordinarily applicable de horse the statutory notification granting concessional rate in view of the provisions contained in Condition No. 2 of the Conditions. 8. The next question to be considered is whether if payment is made in excess of what the plaintiff was legally bound to pay under the contract, is it open to the plaintiff to recover the excess amount paid by filing a suit ? 8. The next question to be considered is whether if payment is made in excess of what the plaintiff was legally bound to pay under the contract, is it open to the plaintiff to recover the excess amount paid by filing a suit ? According to the learned counsel for the appellant, the appellant's claim would squarely fall under S. 72 of the Contract Act. Section 72 of the Contract Act lays down that a person to whom money has been paid, or anything delivered, by mistake or under coercion, must repay or return it. I do not think that it is necessary for the plaintiff to aver that the suit is brought under S. 72 if necessary averments to attract S.72 are pleaded. If payment is made under a mistake or coercion as alleged then the plaintiff is entitled to get refund of the amount under S. 72. Learned counsel for the respondent strongly contended that there is no plea of mistake in the pleadings of the plaintiff. It is true that the expression 'mistake' has not been used in the plaint by the plaintiff. In paragraph 4, the plaintiff has averred that in the bill issued by the defendant excise duty at 12% and 5% special excise duty on basic excise duty were also added, but the actual amount paid by the defendant towards the supply order was only Rs. 32,564.11 as disclosed from the gate pass No. 3006 dated 28-1-1979 issued by the Central Excise Department, that and the excess amount of Rs. 11,034.51 was illegally and improperly levied in the bill issued by the defendant and that the plaintiff was forced to pay the same at the instance of the defendant. There is specific averment that the plaintiff was not liable to pay excess amount of Rs. 11,034.51 under the contract and it was levied illegally and improperly. There is also the averment that the plaintiff was forced to pay the amount at the instance of the defendant. Of course it is not stated that payment was made by a mistake. What is a mistake, within the meaning of S. 72 has come up for consideration in a catena of decisions. 9. There is also the averment that the plaintiff was forced to pay the amount at the instance of the defendant. Of course it is not stated that payment was made by a mistake. What is a mistake, within the meaning of S. 72 has come up for consideration in a catena of decisions. 9. In Sri Sri Shiba Prasad Singh v. Maharaja Srish Chandra Nandi (AIR 1949 PC 297), dealing with the question, the Privy Council observed (at page 302): "Payment "by mistake" in S. 72 must refer to a payment which was not legally due and which could not have been enforced; the "mistake" is thinking that the money paid was due when in fact it was not due. There is nothing inconsistent in enacting on the one hand that if parties enter into a contract under mistake in law that contract must stand and is enforceable, but on the other hand that if one party acting under mistake of law pays to another party money which is not due by contract or otherwise, that money must be repaid. Moreover if the argument based on inconsistency with S. 21 were valid, a similar argument based on inconsistency with S. 22 would be valid and would lead to the conclusion that S. 72 does not even apply to mistake of fact. xx xx xx xx But there appears to their Lordships to be no good reason for so limiting the scope of the Act. Once it is established that the payment in question was not due, it appears to their Lordships to be irrelevant to consider whether or not there was a contract between the parties under which some other sum was due.......... It may be well to add that their Lordships' judgment does not imply that every sum paid under mistake is recoverable no matter what the circumstances may be. There may in a particular case be circumstances which disentitle a plaintiff by estoppel or otherwise." The Privy Council ultimately held that the money in that case was paid under the belief that it was legally due. This belief was a mistake. In their Lordships' view that is sufficient to bring the case within S. 72 of the Act. 10. There may in a particular case be circumstances which disentitle a plaintiff by estoppel or otherwise." The Privy Council ultimately held that the money in that case was paid under the belief that it was legally due. This belief was a mistake. In their Lordships' view that is sufficient to bring the case within S. 72 of the Act. 10. The scope of S. 72 of the Contract Act came up for consideration before the Madras High Court in Lakshmanprasad and Sons v. S. V. Kamal Bai (AIR 1960 Mad 335). In that case, a person purchased a motor car at a price which it was represented by the vendor to be the controlled price under the Madras Civil Motor Cars Control Order 1947 but afterwards the vendee came to know that he paid more than the controlled price upon the false representation of the vendor. The court held that the excess payment is a payment made by mistake attracting S. 72 of the Contract Act. 11. In Modern Industries v. State of Uttar Pradesh (Vol. 32 1973 STC 555), the Allahabad High Court, after reviewing the decisions on the question of 'mistake' within the meaning of S. 72 of the Contract Act, observed as follows : "The question as to whether moneys have been paid under a mistake has got to be adjudged with reference to the litigant who claims the refund and not by the yardstick of a prudent and diligent assessee. Therefore, in case the assessee could establish that there was a mistake of law committed by it at the time when the payments were made, the mere fact that it might have been possible for the assessee by the exercise of due care and diligence, to have known of the correct position in law would not disentitle it to the benefit of S. 72 of the Contract Act." No doubt in Anath Bandhu Deb v. Dominion of India (AIR 1955 Cal 626) a different view was taken and the view expressed in that case would support the contention raised by the learned counsel for the respondent, but the Court held that it was unable to agree with the decision in view of the pronouncement of the Supreme Court in Sales Tax Officer v. Kanhaiya Lal Makund Lal Saraf (AIR 1959 SC 135). Learned counsel also brought to my notice the Division Bench decision of the Gujarat High Court in Union of India v. Ahmedabad Manufacturing and Calico Printing Co. Ltd. (1984 (17) BLT 246). In the course of the judgment the Gujarat High Court observed : "In our opinion, therefore, the person claiming repayment or return of money or thing u/S. 72 must establish that justice of the case requires such repayment or return of money or thing. What is important is the substance of the right conferred under that Section. Therefore, the person basing his claim on that section has to prove that it would be against conscience to allow the person to whom money is paid or thing delivered to retain it. He must establish that the person to whom money has been paid or thing delivered by mistake or under coercion is retaining it at his expense. In other words, it must be established that it would be unjust to allow the person to whom money is paid or thing delivered by mistake or under coercion to retain it and to allow him to do so would result in any loss or injury to him. If there is no loss or injury to the person claiming restitution, the claim for restitution cannot be sustained. As pointed out above, restitution postulates restoration to the rest or proper owner or reparation of injury or making good the loss. If the person claiming restitution is not the real owner of the money paid or thing delivered by mistake or under coercion, or if no loss or injury is caused to him, he could not be entitled to restitution. In our opinion, therefore, in order to succeed in an action for restitution under S. 72 of the Contract Act it is absolutely essential for the person claiming restitution to establish ownership loss or injury." In that case, the excise duty paid by the Mills went into the cost structure of blended yarn manufactured by them. The sale price of the fabric manufactured with the use of blended yarn included the cost of blended yarn in which embodied the excise duty. One of the components of the cost of fabric was the excise duty paid on the blended yarn. Thus while fixing or determining the sale price of the fabric, the excise duty paid on the blended yarn was taken care of. One of the components of the cost of fabric was the excise duty paid on the blended yarn. Thus while fixing or determining the sale price of the fabric, the excise duty paid on the blended yarn was taken care of. The sale price of the fabric was less than its cost. The mills initially paid the excise duty on blended yarn but they did not bear its burden and threw it on their customers to whom the finished product namely art silk was sold. In the light of these facts the court held that loss or injury was not caused to the mills but to the ultimate buyers of fabric to whom the burden of excise duty paid on blended yarn has been passed on, and therefore, if anybody is entitled to restitution, it is only the buyer of the fabric and not the mills. 12. In this case the defendant has paid the excise duty and additional excise duty only at concessional rate but they collected from the plaintiff excess amount and in view of the Constitution No. 2 the plaintiff is entitled to get refund of the excess payment made by him. Under the contract plaintiff is liable to pay only the excise duty paid at actuals. It would not be legal for the defendant to retain the excess amount collected on the basis that the concession is allowed by reason of their performance. I do not find any warrant to agree with the contention of the learned counsel that they are entitled to retain excise duty collected from the plaintiff in the light of the notification under which concession in the payment of excise duty was granted in favour of the defendant. Learned counsel for the respondent submitted that really the plaintiff had no case that it is under a mistake that payment was made, that the correspondence would show that they were well aware of the actual excise duty paid by the defendant and that it was only on account of audit objection that the plaintiff has chosen to approach the court to save their face. I am unable to accept the contention of the learned counsel for the respondent. It may be that the plaintiff was alerted to take action for refund of the excess excise duty paid by them because of the audit objection. I am unable to accept the contention of the learned counsel for the respondent. It may be that the plaintiff was alerted to take action for refund of the excess excise duty paid by them because of the audit objection. But it does not follow from that, the only reason for them to claim the amount is the objection raised by the Audit Department. Once it is found that the plaintiff is not bound under the contract to pay at higher rate and only at the rate of actual payment, the plaintiff is entitled to get refund of the excess amount paid under a 'mistake'. 13. The foregoing discussion would show that the plaintiff is entitled to a decree for refund of the amount claimed in the suit. The judgment and decree of the court below are unsustainable. In the result, the appeal is allowed and the judgment and decree of the court below are set aside. The plaintiff is granted a decree to recover the amount claimed in the plaint with interest at 6% per annum from the date of suit. Parties will suffer their respective costs. Appeal allowed.