JUDGMENT 1. - This petition under Act, 226 of the Constitution of India has been filed by M/s Jaipur Minerals and Chemicals, Jaipur for directing and restraining the State of Rajasthan and other respondents arrayed as respondent Nos. 2 and 3 from collecting excise duty or bank guarantee or surety from the petitioner. The other relief claimed was that the respondents be directed to refund the amount realised from the petitioner byway of excise duty amounting to Rs. 16,800 along with interest at the rate of 12 percent per annum. The petitioner is carrying on business in manufacturing industrial chemicals using denatured spirit. 2. For appreciating the points involved in this petition, a brief history relevant for refund and invalidating the impugned notification would be necessary. 3. In 1979, S.B. Civil Writ Petition No. 1688 of 1976 filed by Mahalaxmi Paints Industries against the State of Rajasthan, challenging the levy on denatured spirit by the State of Rajasthan, was decided by a learned Single Judge of this Court. The contention of the petitioner in that case was that the State Legislature was competent to levy excise duty or countervailing duty only on Alcoholic liquors not fit for human consumption, which were manufactured or produced in the State of Rajasthan and also not on denatured spirit which was imported from different parts of the country. The writ petition was allowed by the learned Single Judge holding that the State of Rajasthan was not competent in impose excise duty on denatured spirit, which was not fit for human consumption, Consequently, the notification dated 9th March 1970, which imposed excise duty and countervailing duty on denatured spirituous preparation was held to be unconstitutional and void. The State of Rajasthan took the matter in Special Appeal, which was numbered as 116 of 1979. The same was dismissed by a Division Bench upholding the Judgment of the learned Single Judge by which the notification dated 9th march 1970 imposing excise duty on denatured spirit and denatured spirituous preparation was held to be unconstitutional and void. 4. Simultaneously, a similar type of dispute raising the competence of the State Legislature to impose excise duty was also going on in the State of UP M/s Synthetics and Chemicals Ltd., Bareilly challenged the notifications by which vend fee of Rs. 4. Simultaneously, a similar type of dispute raising the competence of the State Legislature to impose excise duty was also going on in the State of UP M/s Synthetics and Chemicals Ltd., Bareilly challenged the notifications by which vend fee of Rs. 1.10P per bulk litre had been levied by the State of UP., by means of writ petition No. 8069 of 1972 in the Allahabad High Court. The High Court allowed the writ petition by its judgment reported in 1973 All. L.J. 732 Synthetics & Chemicals Ltd. Bareilly v. State. The Allahabad High Court held that denatured spirit being not fit for human consumption, therefore, no excise duty would be levied on it by the State Govt. 5. After the aforesaid judgment, the State of UP enacted UP Excise (Amendment) (Re-enactment and Validation) Act of 1976. This Act was passed to overcome the basis of the judgment of the Allahabad High Court in Sheopat Rai, which was followed in 1973 All LJ 732 (Supra). 6. This matter and several others, which were filed in the Allahabad High Court details of which are not necessary for the purpose of the case, were heard and disposed of by a common judgment dated 19th Nov. 1979 of Supreme Court. The Supreme Court held the notification imposing excise duty on industrial Alcohol to be valid. Another bunch contending that the State was not authorised to levy excise duty on Industrial Alcohol, was decided by the Supreme Court in Synthetics & Chemicals Ltd. v. State of U.P. and Ors., AIR 1990 SC 1927 . This time, the Supreme Court overruled its earlier decision given in State of U.P. v. Synthetics & Chemicals Ltd., (1980) 2 SCR 531 , AIR 1980 SC 614 holding that the State Legislature had no power as her under Entry 8 of List II or under Entry 33 of List 3 of the Constitution to impose excise duty. In this case, one on the considerations which came up before the Supreme Court was whether law laid down in (Supra) was required to be preserved for the period before the judgment reported to came or the same be made applicable prospectively. The Honble Supreme Court felt it necessary to observe that these provisions be declared illegal prospectively. In this case, one on the considerations which came up before the Supreme Court was whether law laid down in (Supra) was required to be preserved for the period before the judgment reported to came or the same be made applicable prospectively. The Honble Supreme Court felt it necessary to observe that these provisions be declared illegal prospectively. In Paragraph 88 of the judgment, the Supreme Court held as under: "We must, however observe that these imposts and levies have been imposed by virtue of the decision of this Court in Synthetics and Chemicals Ltd. 's case. The State as well as the petitioners and manufacturers have adjusted their rights and their position on that basis except in the case of State of Tamil Nadu. In that view of the matter, it would be necessary to state that these provisions are declared to be illegal prospectively. In other words, the respondents states are restrained from enforcing the said levy any further but the respondents will not be liable for any refund and the tax already collected and paid will not be refunded. We prospectively declare these imposts to be illegal and Invalid, but do not affect any realisations already made. The writ petitions... 7. In paragraph 89 of the said judgment, interpretation of which was the bone of contention of the two sides and which is also material in that regard, the Hon'ble Supreme Court observed as under: "...It is, therefore, necessary to declare that in future no further realisation will be made in respect of this by the State Government from the petitioners.... 8. After the decision given in AIR 1990 SC 1927 Supra this writ petition came up for hearing before me. Learned Counsel for the petitioner advanced his submission by asserting that as the levy has been held to be invalid the petitioner the petitioner is entitled to get the refund of the aforesaid sum. He also urged that the State of Rajasthan cannot be permitted to retain the money which was illegally realised by it and permitting the same would amount to unjust enrichment. 9. State of Rajasthan went up in appeal to the Supreme Court against the decision of the Rajasthan High Court in Spl. Appeal No. 116 of 1979. He also urged that the State of Rajasthan cannot be permitted to retain the money which was illegally realised by it and permitting the same would amount to unjust enrichment. 9. State of Rajasthan went up in appeal to the Supreme Court against the decision of the Rajasthan High Court in Spl. Appeal No. 116 of 1979. By this judgment, it may be recalled that the Division Bench of the Rajasthan High Court had upheld the judgment of the learned Single Judge that the excise duty and countervailing duty was not leviable on denatured spirit and denatured spirituous preparation. The judgment given in appeal by the Rajasthan High Court was in accordance with the judgment of the Supreme Court in AIR 1990 SC 1927 (Supra). In accordance with the same, the controversy that arose was about the interpretation of paragraph 89 of the said judgment. Hon'ble Supreme Court held as under: "...In this paragraph, it has been stated that the said levy has been declared to be illegal only prospectively. In other words, the respondents States therein were restrained from imposing the said levy any further but they were not liable to refund any duty already paid or collected. We direct the appellants here in keep this in mind and abide by the terms of the declaration of this Court that the levy is declared illegal prospectively but the duties collected already will not be refunded to the parties concerned. 10. After having examined all the judgments mentioned above, and referring to paragraphs 88 and 89 of the decision of Hon'ble Supreme Court in AIR 1990 Supreme Court 1927 (Supra), it arrears to me that the Supreme Court made it crystal clear in Civil Appeal Nos. 1741-48 of 1987, which went from this Court, that the levy had been declared illegal only prospectively and that the State Government was not liable to refund any duty already paid or collected. That being so, it is clear that the petitioner was not entitled to the refund claimed by means of this writ petition. It is true that the Special Appeal Bench of this Court took the same view in Spl. That being so, it is clear that the petitioner was not entitled to the refund claimed by means of this writ petition. It is true that the Special Appeal Bench of this Court took the same view in Spl. Appeal No. 116 of 1979 as was taken by the Hon'ble Supreme Court in (Supra), but the Supreme Court deciding the appeal pending before it against this very judgment remarked that levy was declared illegal prospectively and the duties collected already would not be refunded to the parties concerned. In view of clear pronouncement of the Supreme Court about the judgment in (Supra), no doubt is left that the claim of the petitioner for refund must be rejuected. 11. For coming to this conclusion, the Hon'ble Supreme Court observed in paragraphs 88 and 89 that the petitioners and manufacturers had adjusted their rights and position on the basis of decision in and that opening of the said controversy was not called for. 12. Learned Counsel for the petitioner next argued that excise duty, which is without authority of law, is a payment, which the State Govt. Cannot retain. The Govt. cannot enrich itself and it is liable to make restitution to the person who had made the payment under mistake or coersion. 13. Excise duty is a tax on manufacture of goods and it is collected at the time of manufacture of exciseable goods from the places of manufacture or from approved where houses. The legal obligation of the manufacturers to pay the said duty is irrespective of the fact whether or not he is able to ultimately shift the tax burden to his wholesale buyers or others. The liability of the manufacturer to pay excise duty may subsist even after the goods have passed out of his hands. But excise duty being an indirect tax, the manufacturer may add the duty to his wholesale cash price and pass on the burden to others. In the petition, no averment has been made by the petitioner that the entire amount of excise duty was paid by the petitioner and it had not been passed on to its customers. That was the necessary averment which ought to have been made by the petitioner to claim the refund from the State Government. In the petition, no averment has been made by the petitioner that the entire amount of excise duty was paid by the petitioner and it had not been passed on to its customers. That was the necessary averment which ought to have been made by the petitioner to claim the refund from the State Government. What the learned Counsel for the petitioner urged was that since the wholesale price or sale price was a consolidate one, it would not be possible to find out how much of the price is attributable to the excise duty imposed by the State Government. If the excise duty had been passed on by the petitioner to its customers, the duty illegally realised by the State Govt. could not be refunded. To direct the refund of the excise duty to the petitioner would result in returning the excise amount, to which he was not entitled. That would mean unjust enrichment of the petitioner. The Court cannot direct the state Government to refund the excise duty to the petitioner as that amount had been relished by him from his customers. In my opinion, since the burden of excise duty had been shifted, as order for refund in favour of the petitioner would result unjust enrichment, as already observed above. 14. For what I have said above, I find this petition is devoid of any merit and it deserves to dismissed. 15. In the result, the petition fails and is dismissed without any order as to costs.Petition Dismissed. *******