JUDGMENT Hon’ble Sudhanshu Dhulia, J. (Oral) 1. This Court vide order dated 2.8.2011 had allowed the contention of the petitioners to the extent that no excise duty is liable to be charged on “raw pine resin”. The operative portion of order dated 2.8.2011 reads as under: - “Therefore it is declared that the imposition of central excise duty on raw pine resin collected and sold by the Uttarakhand forest Department to the processing units is arbitrary and illegal. Consequently the respondents are restrained from demanding central excise duty.” 2. It is also an admitted position that the petitioners had been paying excise duty to the revenue although they have been contesting the matter before this Court that the said demand by the excise department is not authorized by law. 3. The petitioners have now moved an application for reclaiming the excide duty, which has already been paid by them to the Excise Department, on the grounds that the said excise duty held to be unauthorized under the law. This claim of the petitioners though cannot be granted for the simple reason that this being the matter of indirect taxes and the presumption would lie against the petitioners that they already passed on the duty on consumer and consequently if the excise duty which has been given by the petitioner is returned to him it would be a case of unjust enrichment which cannot be allowed. 4. In a Constitution Bench decision i.e. Mafatlal Industries Ltd. Vs. Union of India (1997) 5 SCC 536, Hon’ble Mr. Justice B. P. Jeevan Reddy speaking for majority had observed thus: “108. (iii) … The doctrine of unjust enrichment is a just and salutary doctrine. No person can seek to collect the duty from both ends. In other words, he cannot collect the duty from his purchaser at one end and also collect the same duty from the State on the ground that it has been collected from him contrary to law. The power of the court is not meant to be exercised for unjustly enriching a person. The doctrine of unjust enrichment is, however, inapplicable to the State. State represents the people of the country. No one can speak of the people being unjustly enriched.” 5. The power of the court is not meant to be exercised for unjustly enriching a person. The doctrine of unjust enrichment is, however, inapplicable to the State. State represents the people of the country. No one can speak of the people being unjustly enriched.” 5. It has been held in the above case that even when a tax is declared to be illegal, the refund of the tax cannot be made automatically as matter of right, but it has to be done in accordance with law and procedure prescribed under the law, and the issue of unjust enrichment has to be examined. 6. This position has been reiterated by the Hon’ble Apex Court in Shree Digvijay Cement Co. Ltd. and another Vs. Union of India and another reported in (2003) 2 SCC 614. In Shree Digvijay Cement case (supra) the Hon’ble Apex Court relying upon Mafat Lal case (supra) has held that “There is no automatic right of refund. In Mafatlal Industries Ltd. v. Union of India the Constitution Bench has held that the right to refund of tax paid under an unconstitutional provision of law is not an absolute or an unconditional right. Similar is the position, even if Article 265 can be invoked. The principles of unjust enrichment are applicable in the claim of refund. The claimant has to allege and establish that he has not passed on the burden to another person. The Constitution Bench has held whether the claim for restitution is treated as a constitutional imperative or as a statutory requirement, it is neither an absolute right nor an unconditional obligation but is subject to the requirement as explained in the judgment. Where the burden of duty has been passed on, the claimant cannot say that he has suffered any real loss or prejudice. Real loss or prejudice is suffered in such a case by the person who has ultimately claim its refund. But where such person does not come forward or where it is not possible to refund the amount to him for one or the other reason, it is just and appropriate that that amount is retained by the State i.e. by the people. The doctrine of unjust enrichment is a just and salutary enriching a person. The doctrine of unjust enrichment for unjustly enriching a person. The doctrine of unjust enrichment is a just and salutary enriching a person. The doctrine of unjust enrichment for unjustly enriching a person. The doctrine of unjust enrichment is, however, inapplicable to the State for the State represents the people of country. No one can speak of the people being unjustly enriched.” 7. Learned counsel for the applicant/petitioner Mr. Alok Mehra has relied upon a decision of Hon’ble Apex Court in Automotive Tyre Manufactures Association Vs. Designated Authority and Others reported in (2011) 2 SCC page 258. The said judgment is of no help to the applicant/petitioner as the Hon’ble Apex Court in Automotive Tyre Manufactures Association case (supra) reiterated the position of law held in Mafatlal case (supra) as well as in other cases. It is true that an exception to the above settled legal position is where the applicant/petitioner could have pleaded and proved and adduced evidence in the regard to show that it had not passed on the burden of excise duty to other persons or consumers. This fact has neither been pleaded nor proved in his application, which is presently before this Court. Hence, no relief can be granted to the applicant/petitioner and the modification application fails. 8. In view of the above, the modification application no. 893 of 2011 is rejected.