( 1 ) A Division Bench hearing this First Appeal found itself in disagreement with the view taken by this Court in Ram Gopal vs. State of U. P. , 1992 ALJ 237, and referred this matter to larger bench. We formulated following question on 28. 1. 2005 to be decided in this reference: "whether the interest can be realised under Section 38-A of the U. P. Excise Act, 1910 on the principal amount for the period during which the Court had stayed realisation of the duty. " ( 2 ) BRIEF facts giving rise to the First Appeal are that the State Government on 10. 6. 1976 issued a Notification whereby it enhanced the Export Duty on Indian Made Foreign Liquor from 50 paisa per litre, to Rs. 1. 75 paisa per litre and imposed fresh duty of Rs. 1. 75 paisa per litre on Rectified Spirit exported to U. P. from other parts of India. The respondents and other distilleries challenged the said notification before this Court by writ petition No. 1150/1975, and other writ petitions. These writ petitions were finally disposed of on 31. 1. 1977. The operative portion of the order is quoted as under; "in the result these writ petitions succeed only in so far as the impugned levy of Export Duty on the rectified spirit, but in other respect these writ petitions fail. We quash the impugned Notification issued by the State of Uttar Pradesh in so far as only as they seek levy export duty on rectified spirit. We issue a writ restraining the State of Uttar Pradesh and its officers from levying and collecting Export Duty and rectified spirit exported to other States and Union Territory. We further direct the respondents to refund to the petitioners any amount collected from them towards Export Duty on rectified spirit except to this limited extent, we dismiss these writ petitions. " ( 3 ) THE respondents filed a Civil Appeal No. 2256/1977 in the Supreme Court, along with Civil Misc. Petition No. 9456/1977. We further direct the respondents to refund to the petitioners any amount collected from them towards Export Duty on rectified spirit except to this limited extent, we dismiss these writ petitions. " ( 3 ) THE respondents filed a Civil Appeal No. 2256/1977 in the Supreme Court, along with Civil Misc. Petition No. 9456/1977. The Supreme Court passed following interim orders; "stay granted for realization of past duty as well as the dues which may be assessed hereinafter on the applicants furnishing a bank guarantee to the satisfaction of the excise authority (Commissioner) for the amount due from them in excess of the amount liable to the refundable to them in regard to export duty on Indian made Foreign Liquor on rectified spirit. The appellant had indicated that this sum refundable to them is Rs. 13,52,861. 17 as on 26. 9. 1977. " ( 4 ) THE applicant furnished bank guarantee to the satisfaction of Excise Commissioner. The Supreme Court vide orders dated 28. 3. 1995 dismissed the Civil Appeal No. 2256/1977 and the other Civil Appeals filed by owners of other distilleries. Consequently, the Excise Inspector on 12. 5. 1999 issued a demand to the respondents to pay Rs. 26,86,856. 00 towards Export Duty on the Indian made Foreign Liquor along with interest at the rate of 18% per annum w. e. f. 29. 9. 1985 amounting to Rs. 46,53,644. 00, total amount of Rs. 73,40,500. 00 ( 5 ) THE respondents filed Suit No. 84/1995 for perpetual injunction restraining the defendants State of U. P. Excise Inspector, Incharge Issue and Storage Section, Rampur Distilleries, Rampur to demand this amount by coercive process and by interfering with the functioning of the factory or by adjusting any amount from the other accounts lying with the defendants in any manner whatsoever. In the written statement, a plea was taken that the Suit is barred by Section 11 of the U. P. Excise Act and the plaintiff is not entitled to any relief, in view of the provisions of Section 41-H of the Specific Relief Act. The District Magistrate, Rampur had by his order dated 23. 5. 1995 adjusted Rs. 21,15,969. 67 already deposited by the plaintiff. The other amount of Rs. 11,53,147. 33 had been adjusted in the arrears of duties and interest. An amount of Rs. 11,55,773. The District Magistrate, Rampur had by his order dated 23. 5. 1995 adjusted Rs. 21,15,969. 67 already deposited by the plaintiff. The other amount of Rs. 11,53,147. 33 had been adjusted in the arrears of duties and interest. An amount of Rs. 11,55,773. 51 charged as Export Duty plus interest at the rate of 18% amounting to Rs. 21,13,332. 76 was withdrawn and adjusted from the account of the plaintiff and thus nothing was left to be realised from the plaintiff respondents. ( 6 ) THE trial court relying upon decision in Ram Gopal vs. State of U. P. 1992 ALJ 237 held that the State of U. P. was not entitled to realise the interest on the amount of duty against the plaintiff for the period the recovery was stayed by Honble Supreme Court and therefore, the demand was illegal. ( 7 ) SECTION 38-A of the U. P. Excise Act 1910 is quoted as below; "38-A Interest on arrears of excise revenue: (1) Where any excise revenue has not been paid within three months from the date on which it becomes payable, interest at such rate not exceeding twenty four percent per annum, as may be prescribed shall be payable from the date such excise revenue becomes payable till the date of actual payment. Provided that until a higher rate is prescribed, the rate of interest will be eighteen percent per annum. Provided further that in respect of an excise revenue which became payable before the commencement of the Uttar Pradesh Excise (Amendment) Act, 1985 interest at the said rate shall be payable from the date of such commencement of the excise revenue is not paid within three months of the said date. (2) Provisions of Section 39, shall mutatis mutandis apply to realisation of such interest, as they apply to realisation of excise revenue. " ( 8 ) IN Ram Gopal (supra) this Court held that word payable referred to under Section 38-A (I) of the Act means enforceable and unless it is enforceable the liability to pay interest under this provision does not arise. The payment of interest is not enforceable if the Court had passed any order staying the payment of excise duty under the Act. The payment of interest is not enforceable if the Court had passed any order staying the payment of excise duty under the Act. Due to interim orders passed by the Court, the amount of licence fees for excise revenue was not legally enforceable and thus the licence fee became payable after the disposal of the writ petition. This judgement was followed in Ram Bharose Shivhare vs. Special Secretary, Excise Department writ petition (814/1993), and Iswari Prasad vs. State of U. P. writ petition No. 372/1997. ( 9 ) THE Division Bench hearing the First Appeal found itself in disagreement with the interpretation of the word payable given in Ram Gopals case. It found that the payment of amount is not conditional upon any order of the Court. Section 38-A of the Act provides that where any excise revenue has not been paid within three months from the date on which it becomes payable, interest is chargeable till the date of actual payment. In New Delhi Municipal Committee vs. Kalu Ram and another AIR 1976 S. C. 1637 the Court observed that the word payable is somewhat definite in import and its meaning must be gathered from the context in which it accrues. The word payable generally means that which should be paid. The Supreme Court relied upon the observations of Privy Council in Hansraj Gupta vs. Official Liquidators of Dehradun-Mussoorie Electronic Tramway Company Limited AIR 1933 PC 63 wherein it was observed that, "it is a section which creates special procedure for obtaining payment of moneys; it is not a section which purports to create a foundation upon which to base a claim for payment. " The word payable, under Section 38-A of the Act must relate to the payment which is to be paid by a person under the provisions of the Excise Act, and is not based on other factors. ( 10 ) SRI Sudhir Agarwal, learned Additional Advocate General appearing for the State respondents submits that there was no interim order passed by the High Court in the writ petition No. 1150 of 1975, and other connected matters. This Court on 31. 1. 1977 decided the writ petition. The fresh imposition of duty of Rs. 1. 75 paisa on rectified spirit was quashed. For rest of the matters the writ petition was dismissed. The Apex Court by order dated 29. 6. This Court on 31. 1. 1977 decided the writ petition. The fresh imposition of duty of Rs. 1. 75 paisa on rectified spirit was quashed. For rest of the matters the writ petition was dismissed. The Apex Court by order dated 29. 6. 1985 granted the stay against realization of past duty as well as the duty which may be assessed thereafter, on the appellants furnishing bank guarantee to the satisfaction of the excise authority. The Civil Appeal was dismissed on 28. 3. 1995. The Trial Court apparently decreed the Suit on 18. 12. 1995 holding that the defendant appellant is not entitled to realise the interest for the period the recovery was stayed by the Apex Court. The judgement of the trial court is based entirely upon Ram Gopals case. Sri Agarwal submits that recently two Division Benches of this Court have had an occasion to consider the judgement in Ram Gopals case and have taken a view that the judgement is per incuriam and is not a binding percent. These judgements were rendered in (a) Shiv Kumar and others vs. Collector, Rampur and others, writ petition No. 964/1995 decided on 9. 11. 2004 and (b) Rampur Distillery and Chemical Company vs. State of U. P. and others, Writ Petition No. 222/1999 decided on 10. 11. 2004. ( 11 ) IN Shiv Kumar vs. Collector, Rampur and others, (supra), the Division Bench was dealing with the same Section namely Section 38-A of the Excise Act 1910. The petitioner was given provisional licence for retail vend of Indian made Foreign Liquor and had deposited a sum of Rs. 14,000/- as security. A dispute arose in respect of allocation of shop, which resulted into the shop being sealed by the Excise authorities and the cancellation of the licence. The shop was re-auctioned. Recovery proceedings were initiated for the shortfall between two auctions. In Writ Petition No. 4886/1979 the recovery was stayed subject to furnishing a bank guarantee. The writ petition was thereafter dismissed for want of prosecution. The bank guarantee was encashed and recovery certificate was issued for Rs. 42,293. 00 towards interest. The shop was re-auctioned. Recovery proceedings were initiated for the shortfall between two auctions. In Writ Petition No. 4886/1979 the recovery was stayed subject to furnishing a bank guarantee. The writ petition was thereafter dismissed for want of prosecution. The bank guarantee was encashed and recovery certificate was issued for Rs. 42,293. 00 towards interest. The Division Bench in this matter held that the judgements in Ram Gopal vs. State of U. P. 1992 ALJ 437, had not considered the settled principle of law laid down by Apex Court in Haji Lal Mohammad Bidi Works Allahabad vs. State of U. P. and others AIR 1973 SC 2226 ; Ram Chandra Ram Contractor, country liquor shop, Raiganj, Ghazipur vs. State of U. P. and others, 1974 UPTC 15 (F. B.); Sales Tax Officer, Section-I, Kanpur and another vs. Dwarika Prasad Sheo Karan Dass, 1977 UPTC 619 (SC); Maha Luxmi sugar Mills company vs. Commissioner of Income Tax, Delhi, 1980 UPTC 689; Calcutta Jute Manufacturing Company vs. Commercial Tax Officer and others, AIR 1997 SC 2920 ; and State of Haryana and others vs. Lal Chand and others, AIR 1984 SC 1326 and thus held the judgement to be per-incuriam, and not a binding precedent. ( 12 ) THE Division Bench in Shiv Kumars case (supra) held that it is well settled by the decisions of the Apex Court for last more than thirty years that the setting aside the recovery of tax does not prevent the running of the interest. The law laid down in Haji Lal Mohd. Biri works case (supra) has been followed and is also supported by Full Bench decisions of this court in Ram Chandra Ram Contractors case. The law laid down in Haji Lal Mohd. Biri works case (supra) has been followed and is also supported by Full Bench decisions of this court in Ram Chandra Ram Contractors case. It was held that the principle of declaring judgement as per-incuriam by Halsburys Law of England (4th Edition) Volume 26 at pages at 297-98, para 578, has been explained by the Apex Court in Mamleshwar Prasad vs. Kannaiya Lal (1975) 2 SCC 232 ; A. R. Antulay vs. R. S. Nayak (1998) 2 SCC 602; State of U. P. vs. Synthetics and Chemicals Ltd. (1991) 4 6 SCC 139;fuerst Day Lawson Ltd. vs. Jindal Export Ltd. (2001) 6 SCC 356 and State of Bihar vs. Kalika Kuer alia Kalika Singh and others (2003) 5 SCC 448 in which the Apex Court held that per-incuriam would mean such element of rendering a decision in ignorance of any provision of the statute or the judicial authority of binding nature and that earlier decision cannot be said to have been rendered per-incuriam and liable to be ignored on the ground that a possible aspect of the matter was not considered or not raised before the Court or more aspect should have been gone into by the Court deciding the earlier matter. There must be a glaring case of obtrusive omission. ( 13 ) IN M/s Rampur Distillery and Chemicals Company Rampur vs. State of U. P. and others (supra) a similar question came up once again before division bench of this Court and it was again reiterated that Ram Gopal vs. State of U. P. (supra) is per-incuriam the decision of Supreme Court in Hazi Lal Mohd. Biri Works, Allahabad and others case cited above. ( 14 ) IN the case of Haji Lal Mohd. Biri Works (supra) the Apex Court had considered the question of levy of interest under the Provisions of U. P. Sales Tax Act. Biri Works, Allahabad and others case cited above. ( 14 ) IN the case of Haji Lal Mohd. Biri Works (supra) the Apex Court had considered the question of levy of interest under the Provisions of U. P. Sales Tax Act. Section 8 (1-A) of the U. P. Sales Tax Act, which provides for interest, reads as follows: " (1-A) If the tax payable under sub-section (1) remains unpaid for six months after the expiry of the time specified in the notice of assessment and demand, or the commencement of the Uttar Pradesh Bikri-kar (Dwitiya Sanshodhan) Adhiniyam, 1963, whichever is later, then without prejudice to any other liability to penalty which the defaulter may, in consequence of such non-payment, incur under this Act, simple interest at the rate of eighteen per cent per annum shall run on the amount then remaining due from the date of expiry of the time specified in the said notice, or from the commencement of the said Adhiniyam, as the case may be, and shall be added to the amount of tax and be deemed for all purposes to be part of the tax: Provided that where as a result of appeal, revision or reference, or of any other order of a competent court of authority the amount of tax is varied, the interest shall be recalculated accordingly: Provided further that the interest on the excess amount of tax payable under an order of enhancement shall run from the date of such order if such excess remains unpaid for six months after the order. " ( 15 ) THE Apex Court repelled the argument advanced before it that the interest on arrears of sales tax could not be realised for the period during which the recovery of sales tax was stayed. In paragraph 10 of the report the Apex Court has held as follows; "10. Argument has also been advanced by mr. Sen that the interest on arrears of sales tax could not be realised for the period during which the recovery of sales tax was stayed. We find it difficult to accede to this contention because there is nothing in the language of Section 8 (1-A) of the Act which prevents the running of interest because of the operation of any stay order. We find it difficult to accede to this contention because there is nothing in the language of Section 8 (1-A) of the Act which prevents the running of interest because of the operation of any stay order. Indeed, the liability to pay interest is created by the statute and the Sales Tax Officer has no discretion to grant any exemption from the payment of interest. " 16. In the case of Ram Chandra Ram Contractor country Liquor Shop Raiganj, Ghazipur vs. State of U. P. 1974 UPTC 15 the Full Bench of this Court had held that there is nothing in the language of Section 8 (1-A) of the U. P. Sales Tax Act which prevented the running of interest because of the operation of any stay order. In Paragraph 7 of the report the Full Bench has held as follows:"7. In our opinion when the Supreme court said that there was nothing in the language of Section 8 (1-A) of the Act which prevented the running of interest because of the operation of any stay order, it meant to law down that no order staying recovery of tax, passed either by the government or any authority including the High Court, will prevent the running of interest. We have come to this conclusion because the Supreme court has based its judgement on the interpretation of Section 8 (1-A) and had held that it does not permit the stoppage of the accrual or running of interest. According to the judgement, interest accrues and continues to run automatically by force of law contained in Section 8 (1-A) of the Act. This Court cannot, therefore, enter into the merits of the controversy to find out if the interest ran during the period of stay or not. " ( 16 ) IN Sales Tax Oifficer Sector-1, Kanpur and onother vs. Dwarika Prasad Sheo Karan Dass (supra) the Apex Court while following the decision of Haji Lal Mohd. Biri Works (supra) held that liability to pay interest under Section 8 (1-A) is automatic and arises by operation of law. ( 17 ) IN the case of Maha Luxmi Sugar Mills Company (supra) the Apex Court held that the liability to pay interest is as certain as the liability to pay cess while interpreting the provisions of Section 3 (3) of the U. P. Sugarcane Cess Act, 1956. It has held as follows; "11. ( 17 ) IN the case of Maha Luxmi Sugar Mills Company (supra) the Apex Court held that the liability to pay interest is as certain as the liability to pay cess while interpreting the provisions of Section 3 (3) of the U. P. Sugarcane Cess Act, 1956. It has held as follows; "11. Now the interest payable on an arrears of cess under Section 3 (3) is in reality part and parcel of the liability to pay cess. It is an accretion to the cess. The arrears of cess "carries" interest; if the cess is not paid within the prescribed period a larger sum will become payable as cess. The enlargement of the cess liability is automatic under Section 3 (3 ). No specific order is necessary in order that the obligation to pay interest should accrue. The liability to pay interest is a certain as the liability to pay cess. As soon as the prescribed date is crossed without payment of cess, interest begins to accrue. . . . " ( 18 ) IN the case of Calcutta Jute Manufacturing Company (supra) the Apex Court considered the provisions of Section 10-A of the Bengal Finance (Sales Tax) Act 1941 which provides for payment of interest by a dealer. The Apex Court has held as follows: "10. The State is empowered by the legislature to raise revenue through the mode prescribed in the Act so that State should not be the sufferer on account of the delay caused by the tax payer in payment of the tax due. The provision for charging interest would have been introduced in order to compensate the State (or the Revenue) for the loss occasioned due to delay in payment the tax (vide Commr. Of Income Tax A. P. v. M. Chandra Sekhar 1985 (1) SCC 283 : ( AIR 1985 SC 114 ) and Central Provinces Manganese Ore. Col Ltd. vs. Commr. Of Income Tax 19876 (3) SCC 461: ( AIR 1987 SC 438 ). " ( 19 ) IN Shree Chamundi Mopeds Ltd. vs. Church of South India Trust Association (1992) 3 SCC 1 , the Apex court has held that wherein operation of the order has been stayed by the Court it only means that such order would not be operative from the date of its passing. " ( 19 ) IN Shree Chamundi Mopeds Ltd. vs. Church of South India Trust Association (1992) 3 SCC 1 , the Apex court has held that wherein operation of the order has been stayed by the Court it only means that such order would not be operative from the date of its passing. It would not mean that the order stayed had been wiped out from existence and the order of stay granted pending disposal of a case comes to an end with the dismissal of the substantive proceeding and it is the duty of the Court in such cases to put the parties in the same position they would have been but for the interim orders of the Court. ( 20 ) IN Kanoria Chemicals and Industries Ltd. vs. U. P. S. E. B. (1997) 5 SCC 772 the Apex Court has held that the grant of stay had not the effect of relieving the litigants of their obligation to pay late payment with interest on the amount withheld by them when the writ petition was dismissed ultimately. Holding otherwise would be against public policy and the interest of justice. ( 21 ) IN the case of Kashyap Zip Industries vs. Union of India (1993) Supp. (3) SCC 493 the Apex Court awarded interest to the Revenue for the duration of stay under the Courts order, since the petitioners therein were found to have the benefit of keeping back the payment of duty under orders of the Court. ( 22 ) IN the case of Style (Dress Land) vs. Union Territory, Chandigarh and another (1999) 7 SCC 89 the Supreme Court held that it is settled principle of law that as and when the party applies and obtains a stay from the Court of law, it is always at the risk and responsibility of the party applying for stay and mere passing of an order of stay cannot be presumed to confer any additional right upon the litigating party. In this case the Supreme Court considered the provisions of Section 3 of the Capital of Punjab (Development and Regulation) Act 1952 which provided for fixation of consideration money of any transfer to the Central Government in such manner and at such rate of interest as may be prescribed. The Apex Court has upheld the awarding of interest at the rate of 15% per annum. The Apex Court has upheld the awarding of interest at the rate of 15% per annum. ( 23 ) IN South Eastern Coal Fields Ltd. vs. State of M. P. (2003) 8 SCC 648 , the Supreme Court considered the question of payment of interest for the period for which the payment of enhanced amount of royalty under Section 4 and 13 (1) and (2) (g) (i) and (R) of the Mines and Minerals (Regulations and Development) Act 1957 and Rules 31 and 64-A of the Mineral Concessions Rules 1960, for the period for which the payment of enhanced amount of royalty was delayed by interim orders passed by the High court. In this case the Central Government in exercise of delegated powers of the Legislation made provisions for the payment of interest on the amount of royalty for the period of delay in payment, considering the effect of interim orders which were later on vacated and operating interest on the ground of doctrine of restitution. It was held in para 28 as follows; "28. That no one shall suffer by an act of the court is not a rule confined to an erroneous act of the court; the "act of the court" embraces within its sweep all such acts as to which the court may from an opinion in any legal proceedings that the court would not have so acted had it been correctly apprised of the facts and the law. The factor attracting applicability of restitution is not the act of the court being wrongful or a mistake or error committed by the court; the test is whether on account of an act of the party persuading the court to pass an order held at the end as not sustainable, has resulted in one party gaining an advantage which it would not have otherwise earned, or the other party has suffered an impoverishment which it would not have suffered but for the order of the court and the act of such party. The quantum of restitution, depending on the facts and circumstances of a given case, may take into consideration not only what the party excluded would have made but also what the party under obligation has or might reasonably have made. The quantum of restitution, depending on the facts and circumstances of a given case, may take into consideration not only what the party excluded would have made but also what the party under obligation has or might reasonably have made. There is nothing wrong in the parties demanding being placed in the same position in which they would have been had the court not intervened by its interim order when at the end of the proceedings the court pronounces its judicial verdict which does not match with and countenance its own interim verdict. Whenever called upon to adjudicate, the court would act in conjunction with what is real and substantial justice. The injury, if any, caused by the act of the court shall be undone and the gain which the party would have earned unless it was interdicted by the order of the court would be restored to or conferred on the party by suitably commanding the party liable to do so. Any opinion to the contrary would lead to unjust if not disastrous consequences. Litigation may turn into a fruitful industry. Though litigation is not gambling yet there is an element of chance in every litigation. Unscrupulous litigants may feel encouraged to approach the courts, persuading the court to pass interlocutory orders favourable to them by making out a prima facie case when the issues are yet to be heard and determined on merits and if the concept of restitution is excluded from application to interim orders, then the litigant would stand to gain by swallowing the benefits yielding out of the interim order even though the battle has been lost at the end. This cannot be countenanced. We are, therefore, of the opinion that the successful party finally held entitled to a relief assessable in terms of money at the end of the litigation, is entitled to be compensated by award of interest at a suitable reasonable rate for the period for which the interim order of the court withholding the release of money had remained in operation. ( 24 ) FOLLOWING the law which is settled for so long and has been reiterated time and again, we have no hesitation in holding that the liability of interest under Section 31-1 (1) of the U. P. Excise Act 1910, is statutory in nature, and that the State should not be made the sufferer on account of the delay caused by the tax payers in payment of the tax due. The interim orders passed by the Court do not prevent the running of interest, and that unless the provision or rate of interest is struck down by the Court, the interest becomes payable immediately after the effect of the interim orders, or the final order as the case may be, is lifted by vacating the interim orders or by setting aside the final orders in Appeal. The principles that interim orders merge with final orders, and that no one shall suffer by an act of the court comes into play, and that the doctrine of restitution is attracted, compensating the other party, in this case, the State, with the statutory interest. ( 25 ) IN the facts and circumstances, we hold that the judgement in Ram Gopal vs. State of U. P. 1992 ALJ 237, is not a good law, and that the Judgement and Decree passed by trial court, based only upon this case cannot be sustained. ( 26 ) WE accordingly answer the question as follows; "the interest payable under Section 38-A (1) of the U. P. Excise Act 1910, on the principal amount of the excise revenue, can be realised even for the period during which the Court had stayed the realisation of the duty. The liability is not curtailed for the period the Court had stayed its realisation. " ( 27 ) LET the papers be laid before the appropriate Division Bench for deciding the First Appeal in accordance with the answer given by us to the reference. .