Holding

The vend fee realised by the State is not refundable and the State is barred from collecting any vend fee, whether for the period before or after 25‑Oct‑1989; deposits are deemed realisations and bank guarantees are not payments of tax.

Summary

The appellant, Mis. Somaiya Organics (India) Ltd., manufactured industrial alcohol and was initially exempt from a vend fee under the U.P. Excise Act, 1910. The exemption was withdrawn in 1979 and the company filed writ petitions; the High Court ordered it to give a bank guarantee and/or deposit amounts in a separate account pending the case. The Supreme Court later, in the Synthetics and Chemicals case, declared the vend fee levy on industrial alcohol unconstitutional prospectively from 25‑Oct‑1989. The State argued it could still recover the fee for the period before that date, including amounts deposited and bank guarantees. The Court held that deposits made under interim orders constitute "realisation" under the Excise Act and are not refundable, and that a bank guarantee is not a payment of tax. Consequently, the State cannot collect any vend fee for any period, and the amounts already realised remain with the State. The appeal was allowed, and other related appeals were dismissed.

Issues considered

The State's right to collect vend fee for the period prior to 25‑Oct‑1989 after the prospective overruling in the Synthetics case.
Whether deposits made in a separate account under interim orders constitute "realisation" under the U.P. Excise Act and are refundable.
The legal effect of a bank guarantee furnished under the High Court's interim order – whether it amounts to payment of vend fee.
The interpretation of Article 265 of the Constitution regarding "levy" versus "collect" in the context of the vend fee.
The applicability of the principle of unjust enrichment to the State's claim for recovery of vend fee.

Legislation cited

Constitution of Indias. Article 141, s. Article 142, s. Article 245, s. Article 246, s. Article 265
U.P. Excise Act, 1910s. Section 3(1), s. Section 3(3a), s. Section 39

Subjects

excise dutyvend feeindustrial alcoholprospective overrulingArticle 265levy vs collectbank guaranteeunjust enrichmentrefundtax collectionconstitutional law

Judgment

MIS. SOMAIYA ORGANICS (INDIA) LTD. A
v.
STATE OF UTTAR PRADESH AND ANR.

APRIL 17, 2001

[B.N. KIRPAL, SYED SHAH MOHAMMED QUADRI, M.B. SHAH, B
RUMA PAL AND K.G. BALAKRISHNAN, JJ.]

Excise Law:

U.P Excise Act, 1910: Section 39. c
Excise Revenue-Vend fee-Industrial alcohol-Levy on-Supreme
Court declared levy of vend fee on industrial alcohol as illegal, prospectively
w.e.f 25.10.1989-However, State sought to recover vend fee prior to
25. l 0.1989-Validity of-Held: Vend fee already realised not to be refunded-
However, State cannot collect any vend fee notwithstanding issue of notice D
of demand.

1"- Excise Revenue-Vend fee-Industrial alcohol-Levy on-Vend fee
deposited during pendency of writ petitions-Such deposits were to be kept
in a separate account-Subsequently, levy of vend fee declared illegal
prospective~y w. e.f 25. l 0.1989-Refimd of deposit Entitlement--Held: E
Deposits are realisations for the purposes of U.P Excise Act-Hence, such
deposits are not to be refunded although they were kept in a separate
account.

Excise Revenue-Vend fee-Industrial alcohol-Levy on-Bank F
guarantee furnished during pendency of writ petitions-Subsequently, levy of
vend fee declared illegal prospectively w.e.f 25. l 0.1989-Invoking of bank
guarantee-Held: Furnishing of bank guarantee does not amount to payment
of vend fee-Hence, State not entitled to en cash bank guarantee and realise
vend fee in respect of the period prior to 25. l 0.1989.
G
Constitution of India, 1950: Article 265.

"Levy" and "collect"-Meaning of-Held: 'Levy' means assessment or
charging or imposing tax-While 'collect' means physical realisation of tax
which is levied or imposed-Collection of tax is normally subsequent to levy H
33
34 SUPREME COURT REPORTS [2001) 3 S.C.R.

A of the same-Words and Phrases.

Doctrines:

Doctrine of Prospective Overruling-Applicability of

B The applicant manufactured industiial alcohol on which vend fee payable
under the U.P. Excise Act, 1910 was exempted. Subsequently, the respondent-
State withdrelv the exemption from payment of vend fee on indu!l1rial alcohol.
This was challenged by the appellant and the High Court, by an interim
order, required the a1lpellant to give a bank guarantee and/or to pay the
amount due; it directed the res1londent-State to keep the amount in a separate
C account

Subsequently, in Synthetics and Chemicals case, [1990] 1 SCC 109
(second Synthetics case) this Court struck down the llrovision imposing vend
fee on industrial alcohol proSJlectively i.e. from 25.10.1989. However, the
High Court held that the res1londent-State was entitled to realise the vend fee
D for the period prior to 25.10.1989. Hence these appeals.

On behalf of the a1lpellant it was contended that under Article 265 of
the Constitution no tax could be levied or collected without the authority of
law; that in respect of the pel"iod 1irior to 25.10.1989 even if tax had been ¥
levied and/or demand raised the same could not be collected; that in those
E cases where money was deposited with the State on the condition that the
same would be kept in a separate account and would be subject to the outcome
of the writ petition, the allllellant would be entitled to refund thereof; and that
furnishing of a bank b'llarantee did not tantamount to the payment of tax and,
therefore, the respondent was not entitled to encash it.
F On behalf of the respondent it was contended that the appellant had
realised the amount of vend fee payable by taking that figure into account
while determining the sale llrice of industrial alcohol and, therefore, the
respondent was entitled to recover the same as it othenvise would result in
.indue enrichment
G Allowing the appeal, the Court

HEID:
(Per Kirpal, J, for himself, Quadri, J, Shah, J and Balakrishnan, J)

H 1. Prospective overruling, des11ite the terminology, is only a recognition
SOMAIYA ORGANICS (INDIA) LTD. v. STATE 35
of the principle that the court moulds the relief claimed to meet the justice of A
the case - justice not in its logical but in its equitable sense. As far as this
country is concerned, the power has been expressly conferred by Article 142
of the Constitution, which allows th~s Court "to pass such decree or make
such order as is necessary for doing complete justice in any cause or matter
1>ending before it". In exercise of this power, this Court has often denied the
relief claimed despite holding in the claimants' favour in order to do 'complete B
justice'. [48-F]

I. C. Golaknath v. State of Punjab, [1967] 2 SCR 762; India Cement
Ltd. v. State of Tamil Nadu, [1990) 1 SCC 12; Orissa Cement Ltd. v. State of
Orissa, [1991) Sup1>. 1 SCC 430; Union of India v. Mohd. Ramzan Khan, C
[1991] 1 SCC 588; Managing Director, ECIL, Hyderabad v. B. Karunakar,
[1993] 4 SCC 727; Supreme Court Bar Association v. Union ofIndia, [1998]
4 SCC 409; Narayanibai v. State of Maharashtra, [1969) 3 SCC 468 and
Ashok Kumar Gupta v. State of U.P., [1997] 5 SCC 201, referred to.

2.1. The words used in Article 265 of the Constitution are 'levy' and D
'collect'. In taxing statute the words 'levy' and 'collect' are not synonymous
terms. While 'levy' would mean the assessment or charging or imposing tax,
'collect' in Article 265 would mean the physical realisation of the tax, which
is levied or imposed. Collection of tax is normally a stage subsequent to the

- levy of the same. The enforcement of levy could only mean realisatfon of the
tax imposed or demanded. [49-F]

Synthetics and Chemicals Ltd. v. State of U.P., [1990) 1 SCC 109,
followed.
E

Sachid Hussain v. State of U.P., (Writ Petition Nos. 7452 of 1981 and
3571 of 1982 decided by S.C. on 26.2.1990); Yawar Ali v. State of U.P., (Writ F
Petition No. 8435of1981 decided by S.C. on 12.3.1990) and Belsund Sugar
Co. Ltd. v. State of Bihar, [1999) 9 SCC 620, relied on.

Assistant Collector of Central Excise, Calcutta Division v. National
Tobacco Co. of India Ltd., [1972) 2 SCC 560, referred to. G

.... 2.2. It is true that in respect of the same period i.e. prior to 25.10.1989
1>ersons who had obtained stay orders or had othenvise not paid the levy
would be better off than those who have deposited the sums with the
Government and are not entitled to receive any refund. This situation, however,
is unaviodable for the simple reason that Article 265 does not permit H
36 SUPREME COURT REPORTS (2001] 3 S.C.R.

A collection of tax without the authority of law. Even though levy prior to
25.10.1989 may be valid but when in fact no collection was made pursuant to
the said levy, then post judgment collection is not permissible. After 25.10.1989
there was no valid law in existence, which permitted the collection of tax.
After 25.10.1989 the provisions of Section 39 of the U.P. Excise Act, 1910
B which provides for recovery of excise revenue would be inapplicabie.[52-F-G]

Synthetics and Chemicals Ltd. v. State of U.P, [1990) 1 SCC 109 and
M.P V. Sundararamier and Co. v. State ofAndhra Pradesh, [1958) SCR 142,
referred to.

3. A bank guarantee which is furnished cannot be regarded as llayment
C of excise levy which the Government is entitled to retain. The furnishing of a
bank 1,,ruarantee is ordered normally in order to ensure collection of dues.
Where, however, the State, as in the present case, has been held not to be
entitled to collect or realise vend fee after 25.10.1989 it cannot be allowed to
invoke the bank guarantee and realise the amount of vend fee. What cannot
D be done directly cannot be done indirectly either. Furnishing of bank
guarantee is only a promise by the bank to pay to th~ beneficiary the amount
under ce11ain circumstances contained in the bank guarantee. Furnishing of
bank guarantee cannot tantamount to making of payment as it was to avoid
making payment of the vend fee that the bank guarantees were issued. The
respondents, therefore, are not entitled to encash the hank gtiarantees and
E realise vend fee in respect of the period prior to 25.10.1989. [53-F]

Osival Agro Mills Ltd. v. Asstt. Collector of Central Excise Division,
Ludhiana, (1994) 2 SCC 546, relied on.

4.1. It is true that the effect of a legislation without legislative
F competence is that it is non est. Nevertheless, a law enacted without legislative
competence remains on the statute book till a Court of competent jurisdiction
adjudicates thereon and declares it to be void. When the Court declares it to
be void it is only then that it can be said that it is non est for all purposes. In
the second Synthetics and Chemicals case the invalidity of the provisions
G was a declaration under Article 141 of the Constitution. It was for doing
complete justice that the Court in exercise of its jurisdiction under Article
142 moulded the relief in such a way as to give effect to its declaration
prospectively. It is not possible to accept that such an ·order of prospective
overruling is contrary to law. An invalid law has not been held to be valid. All
that has happened is that the declaration of invalidity of the legislation was
H directed to take effect from a future date. [54-B-C]
SOMAIYA ORGANICS (INDIA) LTD. v. STATE 37
4.2. The principle of prospective overruling is too well enshrined in A
this country's jurisprudence for it to be disturbed. Therefore, by reason of
the decision in the second Synthetics case what bas actually happened is
collection and non-collection of vend fee prior to 25.10.1989 is left untouched
However, the Court in the Second Synthetics case did not specifically deal
with the question of deposits made pursuant to interim orders of Courts. The
word used there was 'realisation' in the sense the word has been used in B
taxation statutes in general and the U.P. Excise Act, 1910 in particular.
Howe\•er, the interim orders passed by the High Court show that deposits
were made of vend fee and the purchase tax. Although these 'deposits' were
to be ke1,t in a separate account, nevertheless in the circumstances of this
case, it would be mere sophistry to hold that the monies so deposited were not C
'realisations' for the purposes of the U.P. Excise Act. Therefore, what was
deposited by the appellants with the State would remain with it
notwith!.1anding, the interim orders which required the State to keep it in a
separate account but, at the same time, what hl;ls not been collected by the
State cannot be realised by it, even in those cases where a bank guarantee
had been furnished. (54-D-F] D
Behram Khurshed Pesikaka v. State of Bombay, (1951) 1 SCR 613,
R.M.D.; Chamarbaugwalla v. Union of India, (1957) SCR 930; MP. v.
Sundararamier and Co., (1958] SCR 1422 and Mahendra Lal Jailni v. State
of U.P., (1963) Su1)p. 1 SCR 912, relied on. E
Synthesis and Chemicals Ltd. ~v. State of U.P., (1990) 1 SCC 109,
explained.

5. The principle of unjust enrichment does not apply in the present
case, in view of the direction given in the second Synthetics case that no F
refund be given. This is in line with the principle of unjust enrichment But
that principle cannot be extended to give a right to the State to recover or
realise vend fee after the statute has been struck down and it has been
categorically stated ''the respondent State are restrained from enforcing the
said levy any further..... ". The contention of the respondents in the teeth of G
the aforesaid direction cannot, therefore, be accepted. This is apart from the
fact that there is no factual basis on which this Court can conclude that the
appellants have in fact realised the amount of vend fee and allowing them to
retain it will result in their getting enriched unjustly. (55-B-C]

Mafatlal Industries Ltd. v. Union of India, (1997) 5 SCC 536, held H
38 SUPREME COURT REPORTS [2001) 3 S.C.R.

A inap11licable.

Synthetics and Chemicals Ltd. v. State of U.P., [1990J 1 sec 109, x
explained.

6. The vend fee realised by the States is not to be refunded to the
B appellants and, at the same time, the State cannot coHect any vend fee for the
period prior to 25.10.1989 or thereafter notwithstanding that notices of
demand may have been issued or recovery proceeding initiated. [55-D]

Synthetics and Chemicals Ltd v. State of U.P., [1980] 2 SCC 441 and
Hindustan Sugar Mills Ltd v. State of U.P., [1994] 4 SCC 149, referred to.
c Per Ruma Pal, J. (Supplementing):

1. By 11rospective overruling the Court does not grant the relief claimed
even afte .. holding in the claimant's favour. In the second Synthetics case, the
Court held that the ~1atutory provision im1losing vend fee was invalid. Strictly
speaking, this would have entitled the appellant to a refund from the
D
respondents of all amounts collected by way of vend fee. But because, as
stated in the second Synthetics decision itself, over a period of time imposts
and levies had been ·imposed by virtue of the earlier decision and that the
"'<'
State as well as the petitioners and manufacturers had adjusted their rights
and their positions on that basis, this relief was denied. The Court did not, by
E denying the relief, authorise or validate what had been declared to be illegal
or void nor did it imbue the legislature with com11etence up to.the date of the
judgment [56-E-F]

Synthetics and Chemicals Ltd. v. State U.P., [1990] 1SCC109, followed.

F Prem Chand Garg v. Excise Commissioner, [1963] 1 SCR 885 and
Supreme Court Bar Association v. Union ofIndia, [1998] 4 SCC 409, referred
to.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 4093 of
1991. .
'!""'

G From the Judgment and Order dated 29.8.90 of the Allahabad High Court
in C.M.W. No. 487of1979.

WITH
~

Civil Appeal Nos. 2853, of2001, 324of1981, 455, 2795, 1604, of 1980,
H 624, 625, 125, 2049of1981, I.A. Nos. 1 & 3 in W.P. (C) No. 1892of1973, C.A.
SOMAIYA ORGANICS (INDIA) LTD. v. STATE [KIRPAL, J.] 39

Nos. 1122, 181of1981, SLP (C) Nos. 4181, 4297-4298of1980, C.A. Nos. 215, A
341of1981, T.C. Nos. 37-39of1989, C.A. Nos. 2777of1981and1607of1980.
T
RF. Nariman, F.S. Nariman, K.K. Venugopal, Rakesh Dwivedi, Dinesh
Dwivedi, D.M. Popat, Amrit Dhingra, Zulfikar Kumar Shafi, P.H. Parekh, Shahid
Rizvi, G.K. Kumar, K.C. Dua, YP. Mahajan, Arvind Minocha, Tarun Dua,
Mis/. O.P. Khaitan & Co. (NP), E.C. Agrawala, Mahesh Agarwal, Rishi Agarwal, B
Sumeet Lall, Ashwini Kumar, Sunil Gupta, Ms. A.K. Verma, Janesh Baweja, for
Mis. JBD and Co., Shri Narain, Sandeep Narain, Mis. Anjali, H.K. Puri, S.K.
Puri, U.ijwal, Banerjee, Rajesh Srivastava, K.K. Mohan (NP) ms. Vimla Sinha,
Ms. Niranjana Singh, Vishwajit Singh, Ms. Sangeeta Sharma, Kamlendra Mishra,
RB. Misra, R.C. Verma, Vivek Vishnoi, Rakesh Tikku, Arun K. Sinha, Guntur
'f
Prabhakar (NP), S.C. Patel (NP) and Ashok K. Srivastava (NP) for the appearing
c
parties.
The Judgments of the Court were delivered by
KIRPAL,J.
D
Civil Appeal No. 4093 of 1991 and
C.A. No. 2853 of 2001
(Arising out of SLP (C) No. 20018of1991.
"'
Leave granted in SLP (C) No. 20018of1991. E
These appeals are sequel to a judgment of this Court in Synthetics and
Chemicals Ltd. and Others v. State of U.P. and Others1 wherein it was held
that in respect of industrial alcohol the States were not authorised to impose
the impost they had purported to do. By that judgment delivered on 25th
October, 1989 the Court overruled its earlier decision in State of U.P. and p
Others v. Synthetics and Chemicals Ltd. and Others2 wherein the validity of
such an impost had been upheld. By the second Synthetics case it was

.. declared that the impugned provisions were illegal prospectively.

The question which arises for consideration in these appeals is whether
the vend fee which had been levied by the appropriate State enactments, but G
not collected whether by reasons of the orders of the Court or otherwise, can
be collected now when the said provisions by the said judgment dated 25th
October, 1989 have been held to be invalid prospectively.
1. (1990] 1 sec 109.
2. [1980J 2 sec 441. H
40 SUPREME COURT REPORTS [2001] 3 S.C.R.

A For the sake of convenience, we shall briefly refer to the facts in C.A.
No. 4093of1991 Somaiya Organics (India) Ltd. vs. State ofU.P. & Anr. The
said company had established a plant at Barabanki for manufacture of
intermediaries out of industrial alcohol. Its promoter company had sold and
transferred to the appellant industry distillery located at Captainganj. The
B industrial alcohol manufactured by the distillery at Captainganj was captively
consumed. On 8th October, 1970 the appellant had been exempted from paying
vend fee which was leviable under the U.P. Excise Act, 1910.

On 9th October, 1979, the State of U.P. withdrew the exemption from
payment of vend fee/purchase tax on industrial alcohol. This was challenged
C by the appellant by filing writ petitions in the Allahabad High Court. During
the pendency of the writ petitions interim orders were passed by the High
Court whereby the petitioners before it were required to give a bank guarantee
and/or pay to the State the amounts directed by the Court which, in an earlier
order, the High Court had directed that it should be kept by the State in a
separate account.
D
As noticed hereinabove, vide decision of a Division Bench of this Court
in first Synthetics & Chemicals case rendered on 19th December, 1979 the
validity of the impost was upheld. Subsequently, on the matter being referred
to a Bench of Seven Judges, by the second Synthetics case decision in 1989,
the validity of the provisions of the said Acts permitting levy of excise duty
E in the form of vend fee was struck down prospectively.

The High Court by the impugned judgment dated 29th August; 1990 in
Somaiya's case interpreted the direction in the second Synthetics case relating
to prospective declaration to mean that for the period prior to 25th October,
1989 the amount payable in respect thereto could be recovered. It held that
F once the levy for the period prior to 25th October, 1989 was saved further
steps consequent upon such levy were equally saved ,and recovery in respect
of the dues prior to 25th-October, 1989 could be effected by the State. The
State was held to be entitled to realise the vend fee for the period prior to
25th October, 1989.

G When these appeals against the said decision came up for hearing in
this Court a Division Bench vide its order dated 26th April, 1994 in Hindustan
Sugar Mills Ltd. v. State of U.P. & Others1 observed that the directions and
observations made in the second Synthetics case had been differently
~onstrued by Benches of this Court. In view of this apparent conflict these

H i. [1994] 4 sec 149.
SOMAIYA ORGANICS (INDIA) LTD. v. STATE [KIRPAL, J.] 41

appeals were referred to a larger Bench. It is in pursuance thereto that these A
appeals have been heard.

It was contended by Shri K.K. Venugopal, learned senior counsel for
the appellants, that in respect of industrial alcohol the State Legislature had
no legislative competence to levy excise duty or any tax in that nature.
Drawing our attention to Entry 8 and 51 of List II, he submitted that the State B
can impose excise duty only on potable liquor. Corresponding to that is Entry
84 in List I which enables the Parliament to levy excise duty except in regard
to those items referred to in Entry 51 of List II. Furthermore under Entry 52
of List I the I.D.R. Act had been promulgated by the Parliament and in the
First Schedule Item No. 26 related to fermentation industries. In respect of the C
industries referred to in the First Schedule to the I.D .R. Act it is only the
Parliament which has jurisdiction to levy taxes in respect thereto. As such
levy of vend fee on industrial alcohol by the States was not valid.
It is also submitted that Article 162 provides that the executive power
of a State is co~extensive with its legislative power. Inasmuch as a State
cannot levy excise duty on industrial alcohol being outside the ambit of Entry D
51 of List II, the State Government cannot, in exercise of its executive power,
recover the excise duty. After 25th October, 1989 law ceased to exist in respect
of levy and collection of excise duty on industrial alcohol by reason of want
of legislative competence. As such the State Government _could not exercise
executive power and collect excise duty on industrial alcohol. E
It was contended that under Article 265 of the Constitution no tax can
be levied or collected without the authority of law. The submission was that
authority of law means that there should be a lawful enactment which
authorised the levy and collection of tax. Tax cannot be levied and collected
by virtue of a decision of a Court in the absence of any statutory provision. F
It was further submitted that in series of decisions of this Court, one of the
examples being that of MP. V. Sundararamier & Co. v. The State of Andhra
Pradesh & Another4 it had been held that the law which is declared ultra
vires due to lack of legislative competence would be void ab initio and the
same could not be made operative. The effect of the second judgment in
Synthetics case was that after 25th October, 1989 no levy or collection could G
take place. In respect of the period prior to 25th October, 1989 even if tax had
been levied and/or demand raised the contention of the learned counsel was
that the same could not be collected.
On behalf of the respondents it was contended by Shri Rakesh Dwivedi
1. (1958) SCR 1422. H
42 SUPREME COURT REPORTS [2001] 3 S.C.R.

A that declaration of the provisions as being illegal prospectively meant that
pricir to 25th October, 1989 all the provisions were valid. He submitted "that
this meant that the said provisions were capable of being enforced for the
period prior to the said date. He contended that liability to pay vend fee gets
attracted the moment industrial alcohol is issued. Since this was issued during
the period 31st May, 1979 and 25th October, 1989 the appellants had become
B liable to pay vend fee. Once this liability prior to 25th October, 1989 is held
to be valid then the State was entitled to collect the same. He strongly relied
on the reasoning of the High Court which had observed that it would be
unreasonable if the observations in the second Synthetics case were
understood as entitling the appellants to retain the vend fee despite prospective
C overruling because those who have paid the vend fee for the same period
would stand in a disadvantageous position when compared to those who did
not pay the vend fee in view of the interim orders although in both the cases
liability to tax arises at the time of issuance of the alcohol. Such an
interpretation, it was contended, ·would be arbitrary and violative of Article
14 of the Constitution.
D
The doctrine of prospective overruling was simply based on equity and
full effect must be given thereto and the State should be permitted to recover
the unpaid levy in respect of the period prior to 25th October, 1989. Shri
Dwivedi further submitted that in any case payments which have been made
E under the interim orders of the High Court could be retained by the State and
this clearly flows from the directions of this Court in paragraph 89 of the
judgment in second Synthetics case. The learned counsel, of course, contended
that even in respect of amounts secured by bank guarantee the State would
be entitled to collect the same.

F In the present case the State of Uttar Pradesh, like some other States,
had levied vend fee in respect of industrial alcohol under the U.P. Excise Act,
1910. The validity of the same was challenged and a Division Bench of this
Court in State of U.P. and Others (supra) had upheld its validity. -Subsequently
a review petition was filed in respect of the said judgment and another Writ
G Petition No. 182 of 1980 was also filed by Synthetics & Chemicals Ltd.
challenging a notification dated 31st August, 1979 whereby a new rule was
introduced, in place of existing one, providing for levy of vend fee. This was
challenged and a Bench of Seven Judges in Synthetics and Chemicals Ltd
and Others, (supra) in paragraph 82 recorded its conclusion that the relevant
provisions of the U.P. Act and similar Acts of Andhra Pradesh, Tamil Nadu
H and Bombay were "unconstitutional insofar as these purported to levy a tax
SOMAIYA ORGANICS (INDIA) LTD. v. STATE [KIRPAL, J.] 43

or charge impost upon industrial alcohol, namely, alcohol used and usable · A
for industrial purposes".

Having come to the conclusion that the levy was unconstitutional the
Court, as far as the relief was concerned, observed as follows:

"89. We must, however, observe, that these imposts and levies have B
been imposed by virtue of the decision of this Court in Synthetics &
Chemicals Ltd. case. The States 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. Jn other words, the respondents States are C
restrained fron1 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
1 be illegal and invalid, but do not affect any realisations already made.
The writ petitions and the appeals are disposed of accordingly. The D
review petitions, accordingly, succeed though sttictly no grounds ~s
such have been made out but in view we have taken, the decision in
the Synthetics & Chemicals Ltd. case cannot be upheld. In the view
we have taken also, it is not necessary to decide or to adjudicate if
the levy is valid as to who would be liable, that is to say, the
manufacturer or the producer or the dealer. E
90. With regard to Writ Petition No. 4051 of 1978 (Chemicals &
Plastics India Ltd v. State of Tamil Nadu), certain orders were passed
by this Court on November 1, 1978, September 1, 1986, October 1, 1986
and October 10, 1986. It is stated that the present demand of the
Central Excise Department from March 1, 1986 on alcohol manufactured F
by the company in· their captive distillery is over Rs. 4 Crores. This
Court by its order dated October 1, 1986 as confirmed on October 16,
1986 had permitted the State Government to collect the levy on alcohol
manufactured in company's captive distillery subject to adjustment of
equities and restrained the central excise authorities from collecting G
any excise duty on such alcohol. 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. So far· as the past
realisations made are concerned, we direct that this application for
that part of the direction, should in accordance with our decision
herein be placed before a Division Bench for disposal upon notice H
44 SUPREME COURT REPORTS [2001] 3 S.C.R.

A both to the State Government and the Central Government.
It is contended on behalf of the appellants that the declaration in
paragraph 82 of the said judgment that the impugned provisions of the said
Acts were unconstitutional was a declaration by this Court under Article 141
of the Constitution. The observations and the directions contained in
B paragraphs 89 and 90 supra indicated the exercise of the Courts' jurisdiction
under Article 142.
In the present case in respect of the period prior to 25th October, 1989,
when the second Synthetics case was decided in respect of the appellants,
demand had been raised under the impugned Acts and for some period
C payment had been made and in respect of other periods payment to the State
Governments had not been made. The contention of the appellants is that in
view of the observations of this Court in paragraph 89 the appellants may not
be entitled to claim refund of the taxes already paid but, at the same time, the
State Government is not entitled to collect the taxes in respect of the period
prior to 25th October, 1989, i.e. the date on which the judgment was delivered.
D It was, 'however, subnutted that in those cases where money was deposited
with the State on the condition that the same will be kept in a separate
account and would be subject to the outcome of the writ petition, the appellants
would be entitled ·to refund thereof.
Shri RF. Nariman, learned senior counsel for the appellants referred to
E Supreme Court Bar Association v. Union ofIndia and Another1 (at page 430)
and contended that under Article 142 of the Constitution this Court cannot
pass any order which is contrary to any constitutional or statutory provision.
The effect of the decision in Synthetics case being that the impugned Acts
were without legislative competence and those laws must be regarded as
F nonest as if they did not exist. The validity of the said laws which had earlier
been upheld in the first Synthetics case got wiped_ out with a review petition
against the first Synthetics case being allowed and the declaration of law in
the Synthetics case. He contended that the directi<:ms given in paragraph 89
was to do complete justice in exercise of the power under Article 142 and the
effect of prospective overruling was clearly specified in the said para where
G it is observed that "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". ·

It was also submitted by Shri Nariman that there is no jurisprudential
H -1.--(-1-99-8) 4 sec 409.
SOMAIYA ORGANICS (INDIA) LTD. v. STATE [KIRPAL, J.] 45
basis for applying the doctrine of prospective overruling in India. He submitted A
that this doctrine was first invoked in J.C. Golak Nath & Ors. v. State of
Punjab & Anrs. 1 where Chief Justice K. Sobba Rao for himself and five other
judges invoked an American doctrine to that effect. Shri Nariman contended
that the other six judges did not subscribe to this and in fact three of the
judges through the judgment of Justice Wanchoo expressly came to the
conclusion that the doctrine of prospective overruling was against the B
provisions of Article 13(2) of the Constitution. In our opinion it is not
.necessary nor appropriate for us to go into this question. We are only
concerned with the interpretation and effect of the Second judgment in
Synthetics case and not with regard to the correctness of the same.

It was contended by Shri Nariman that the vend fee which was deposited
c
in Court consequent on the interim order passed in respect thereto clearly
stipulated that the same should be kept in a separate asGount. He, therefore,
submitted that this cannot be regarded as a payment the refund of which the
appellant was not entitled to by reason of the aforesaid observations in the
second Synthetics & Chemicals judgment. He contended that the direction, D
that the amount received by the State should be kept in a separate account,
entitled the appellants to get back the said amount once it was held that the
State Legislature lacked legislative competence to impose such a levy. He
further submitted that in any case the High Court was wrong in coming to
the conclusion that there was any unjust enrichment and, therefore, there E
should be no refund of the levy in question.

Shri Sunil Gupta appearing on behalf of Hindustan Polymers Ltd. while
reiterating the submissions of either counsel further contended that furnishing
of a bank guarantee does not tantamount to payment of tax. He invited our
attention to the decision of this Court in the case of Oswal Agro Mills Ltd. F
and Another v. Asst!. Collector of Central Excise, Division Ludhiana and
Others2• In that case, pursuant to an interim order passed by this Court
staying the recovery of excise duty a bank guarantee had been furnished. The
assessee's appeal was allowed and it claimed the refund of the bank guarantee
which had already been encashed by the excise authorities. The Revenue
contended that the bank guarantee should be deemed to have been an G
equivalent to money deposited in Court and as such Section 11-B of the
Excise Act stood attracted and the appellants having failed to establish before
the authorities concerned that they had not passed on the incidence thereof
1. {1967] 2 SCR 762.
2. (1994] 2 sec 546. H
46 SUPREME COURT REPORTS [2001] 3 S.C.R.

A to 'the customers, the authorities were entitled to encash the bank guarantee
and retain the amount thereof. Allowing the appeal and holding that the
provisions of Section 11-B were not applicable in the case of furnishing of '<'·
t_he bank guarantee, this Court observed a~ foilows:

"9. Section 11-B applies when an assessee claims refund of excise
B duty. A claim for refund is a claim for repayment. It presupposes that
the amount of the excise duty has been paid over to the excise
authorities. It is then that the excise authorities would be required to
repay or refund the excise duty.
10. The question, therefore, is whether it can be said that the furnishing
c of a bank guarantee for all or part of the disputed excise duty pursuant
to an order of the court is equivalent to payment of the amount of the
excise duty. In our view, the answer is in the negative. For the purposes
of securing the revenue in the event of the revenue succeeding in
proceedings before a court, the court, as a condition of staying the
demand for the disputed tax or duty, imposes a condition that the
D assessee shall provide a bank guarantee for the. full an1ount of such ·
tax or duty or part thereof. The bank guarantee is required to be given
either in favour of the principal administrative officer of the court or
in favour of the revenue authority concerned. In the event that the
revenue fails in the proceedings before the court the question of
E payment of the tax or duty, the amount of which is covered by the
bank guarantee, does not arise and, ordinarily, tlie court, at the
conclusion of its order, directs that the bank guarantee shall stand
discharged. Where the revenue succeeds the amount of the tax or
duty becomes payable by the assessee to the revenue and it is open
to the revenue to invoke the bank guarantee and demand payment
F thereon. The bank guarantee is security for the revenue, that in the
event the revenue succeeds its dues will be recoverable, being backed
by the guarantee of a bank. In the event, however unlikely, of the
bank refusing to honour its guarantee it would be necessary for the
revenue or, where the bank guarantee is in favour of the principal
G administrative officer of the court, that officer to file a suit against the
bank for the amount due upon the bank guarantee. The amount of the
disputed tax or duty that is secured by a bank guarantee cannot,
therefore, be held to be paid to the revenue. There is no question of
its refund and Section 11-B is not attracted."

H When this Court decided in J.C. Go/ak Nath 's case that the power of
SOMAIYA ORGANICS (INDIA) LTD. v. STATE [KIRPAL, J.] 47
amendment under Article 368 of the Constitution did not allow Parliament to A
abridge the fundamental rights in Part III of the Constitution, it made the
decision operative with prospective effect. This was done in recognition of
the fact that between the coming into force of the Constitution on 26th
January 1950 and the date of the judgment, Parliament had in fact exercised
the power of amendment in a way which, according to the decision in
Golaknath was void. If retrospectivity were to be given to the decision, "it B
would introduce chaos and unsettled conditions in our country". On the
other hand it also recognised that such possibility of chaos might be preferable
to the alternative of a totalitarian rule. The Court, therefore, sought to evolve
'some reasonable principle to meet this extraordinary situation'. The reasonable
principle which was evolved was the doctrine of prospective overruling. C
Although the doctrine of 'prospective overruling', was drawn from
American jurisprudence, it has/had, of necessity, to develop indigenous
characteristics. The parameters of the power as far as this country is concerned
were sought to be laid down in Golaknath itself when it was said:
D
"As this Court for the first time has been called upon to apply the
doctrine evolved in a different country under different circumstances,
we would like to move warily in the beginning. We would lay down
the following propositions: (1) The doctrine of prospective over-
ruling can be invoked only in matters arising under our Constitution;
(2) it can be applied only by the highest court of the country, i.e., the E
Supreme Court as it has the constitutional jurisdiction to declare law
binding on all the courts in India; (3) the scope of the retroactive
operation of the law declared by the Supreme Court superseding its
earlier decisions is left to its discretion to be moulded in accordance
with the justice of the cause or matter before it". F
The parameters have not been adhered to in practice.

The word 'prospective overruling' implies an earlier judicial decision on
the same issue which was otherwise final. That is how it was understood in
Golaknath. However, this Court has used the power even when deciding on
an issue for the first time. Thus in India Cement Ltd. and {Jthers v. State of G
Tamil Nadu and Others 1, when this Court held that the cess sought to be
levied under Section 115 of the Madras Panchayats Act, 1958 as amended by
· Madras Act 18 of 1964, was unconstitutional, not only did it restrain the State
of Tamil Nadu from enforcing the same any further, it also directed that the
l. fl 990J 1 sec 12. H
48 SUPREME COURT REPORTS [2001] 3 S.C.R.

A State would not be liable for any refund of cess already paid or collected.
This direction was considered in Orissa Cement Ltd. v. State of Orissa x
and Others 1 at page 498 where it was held that:

" ....... The declaration regarding the invalidity of a provision and the
B determination of the relief that should be granted in consequent
thereof are two different things and, in the latter sphere, the Court
has, and must be held to have, a certain amount of di_scretion. It is
a well settled proposition that it is open to the Court to grant, mould
or restrict the relief in a manner most appropriate to the situation
before it in such a way as to advance the interests of justice. It will
c be appreciated that it is not always possible in all situations to give
a logical and complete effect to a finding ..... "

Again in Union of India and Others v. Mohd. Ramzan Khan 2, it was
held that non-furnishing of a copy of the inquiry report to an employee
D amounted to violation of the principles of natural justice and any disciplinary
action taken without furnishing such report was liable to be set aside. However,
it was made clear that the decision would have prospective application so that
no punishment already imposed would be open to challenge on this count.
(See also Managing Director, ECIL, Hyderabad and Others v. B. Karunakar
and Others3.
E
In the ultimate analysis, prospective overruling, despite the terminology,
is only a recognition of the principle that the court moulds the reliefs claimed
to meet the justice of the case - justice not in its logical but in its equitable
sense. As far as this country is concerned, the power has been expressly
conferred by Article 142 of the Constitution which allows this Court "to pass
F such decree or make such order as is necessary for doing complete justice
in any cause or matter pending before it". In exercise of this power, this Court
has often.denied the relief claimed despite holding in the claimants favour in
order to do 'complete justice'.

Given this constitutional discretion, it was perhaps unnecessary to
G resort to any principle of prospective over-ruling a view which was expressed
in Narayanibai v. State of Maharashtra & Others4 at page 470 and inAshok

I. (1991] Supp. (l) sec 430.
2. (1991] 1 sec 588.
3. (1993) 4 sec 121.
H 4. (1969] 3 sec 468.
SOMAIYA ORGANICS (INDIA) LTD. v. STATE [KIRPAL, J.] 49
,.__. Kumar Gupta and Another v. State of UP. and Others1• In the latter case, A
while dealing with the "doctrine of prospective overruling", this Court said
y'
that it was a method evolved by the Courts to adjust competing rights of
parties so as to save transactions 'whether statutory or otherwise, that were
effected by the earlier law'. According to this Court, it was a "rule of judicial
craftsmanship with pragmatism and judicial statesmanship as a useful outline
to bring about smooth transition of the operation of law without unduly
B
affecting the rights of the people who acted upon the law operated prior to
the date of the judgment overruling the previous law." Ultimately, it is a
question of this Court's discretion and is, for this reason, relatable directly
to the words of the Court granting the relief.

Reading the two paragraphs 89 and 90 together it does appear that this
c
Court regarded the declaration of the provisions being illegal prospectively
as only meaning that if the States had already collected the tax they would
not be liable to pay back the same. It is the States which were protected as
a result of the declaration for othenvise on the conclusion that the impugned
Acts lacked legislative competence the result would have been that any tax D
collected would have become refundable as no State could retain the same
because levy would be without the authority of law and contrary to Article
~ ·265 of the Constitution. At the same time, it was clearly stipulated that the
States were restrained from enforcing the levy any further. The words used

..
in Article 265 are 'levy' and 'collect'. In taxing statute the words 'levy' and
'collect' are not synonymcus terms, (refer to Assistant Collector of Central
E
Excise, Calcutta Division v. National Tobacco Co. of India LtcP. at page 572,
while 'levy' would mean the assessment or charging or imposing tax, 'collect'
in Article 265 would mean the physical realisation of the tax which is levied
or imposed. Collection of tax is normally a stage subsequent to the levy of
.,. the same. The enforcement of levy could only mean realisation of the tax F
imposed or demanded. That the States were prevented to recover the tax, if
not already realised, in respect of the period prior to 25th October, 1989 is
further evident from paragraph 90 of the judgment. The said paragraph shows
that as on the date of the judgment for the period subsequent to 1st March,
1986 the demand of the Central Excise Department on the alcohol manufactured
was over Rs. 4 Crores. The Court referred to its orders dated 1st October, 1986 G
and 16th October, 1986 whereby the State Government was permitted to
collect the levy on alcohol manufactured in the company's distilleries. With
respect to the said amount of Rs. 4 Crores, it was observed that "it is,
I. r19971 s sec 20 I.
2. [1972] 2 sec 560. H
50 SUPREME COURT REPORTS [2001] 3 S.C.R.

A therefore, necessary to declare that in future no further realisation will be .. ,,,,
made in respect of this by the State Government from the petitioners". The
implication clearly was that if out of Rs. 4 Crores the State Government had "-·
collected some levy the balance outstanding cannot be collected after 25th
October, 1989.

B After the decision in second Synthetics case Writ Petition Nos. 7452 of
1981 and 3571 of 1982 - Sachid Hussain & Anr. v. The State of U.P. & Ors.,
- came up for hearing. A Bench of Three Judges presided over by Chief
Justice Mukherji, who had delivered the judgment in second Synthetics case
vide order dated 26th February, 1990 disposing of the said writ petitions
c observed as follows:

"In view of the judgement of this Court in Synthetics and Chemicals
Limited and Others v. State of Uttar Pradesh, [1990] 1 SCC 109, these
writ petitions are allowed prospectively and the levy is declared to be
bad prospectively. Since no refund is claimed,. there will be an order
D in terms ·of prayers (1) and {2) of the writ petitions viz. the recovery
order issued by the Excise Inspector dated 14th September, 1981 for
a ·sum of Rs. 68,200 against the petitioners are quashed and the
respondents are directed not to recover the amount of Rs. 68,200 from ~
the petitioner towards vend fee for the period from 9.4.75 to 11.7.78."
E
To the same effect is another order dated 12th March, 1990 again by a
Bench presided over by Chief Justice Mukherji in Writ Petition No. 8435 of
1981 - Yawar Ali v. The State of U.P. & Ors. By these two orders the State
of U.P. was directed not to recover the amounts outstanding despite recovery
notices having been.issued on a date prior to 25th October, 1989. These two
F orders are important inasmuch as the author of the judgment in second
Synthetics case understood his own decision of prospective overruling to
imply that if a levy in respect of the period earlier than 25th October, 1989. has
not been recovered by the excise authorities then notwithstanding a recovery
order having been issued the State was not entitled to recover the amount.
It.can be said that in 1990 Chief Justice Mukherji, along with two companion
G Judges interpreted his earlier decision in a ·manner which clearly showed that
paragraph 89 of the judgment in the second Synthetics case could not entitle
the State to physically receive any amount in respect of the levy for the
period prior to 25th October, 1989 even though it could be said that the levy. ./

before that date was not invalid because of the doctrine of prospective
H overruling.
SOMAIYA ORGANICS (INDIA) LTD. v. STATE [KIRPAL, J.] 51
The doctrine of prospective overruling was applied in Belsund Sugar A
Co. Ltd. v. State of Bihar and Others 1• The question which arose for

.. consideration there was whether market fee could be levied under the Bihar
Agriculture Produce Markets Act, 1960 in respect to transactions of purchase
of sugarcane, sugar and molasses by sugar mills. In view of the ~rovisions
qf the Bihar Sugarcane ·(Regulation of Supply and Purchase) Act, 1981 read
with Sugar (Control) Order, 1966 issued under the Essential Commodities Act, B
it was held that the provisions of the Sugarcane Act and the Sugarcane Order,
on the one hand, and the Bihar Market Act on the other could not operate
harmoniously and, therefore, the Sugarcane Act and the Sugarcane Order
-f
prevailed over the Market Act. It was then contended that the appellants
therein should be allowed to get refund of the market fee which they had paid C
under the Market Act subject to their showing that they had not passed on

- the burden on the principle of unjust enrichment. Dealing with the above
contentions, it \>-Vas observed as follows:

"112 ........ Under these circumstances, keeping in view the peculiar
facts and circumstances of these cases, we deem it fit to Jirect in D
exercise our powers under Article 142 of the Constitution of India that
the present decision will have only a prospective effect. Meaning
thereby that after the pronouncement of this judgment all future
transactions of purchase of sugarcane by the sugar factories concerned
in the market areas as well ·as the sale of manufactured sugar and E
·molasses produced by therefrom by utilising this purchased sugarcane
by these factories will not be subjected to the levy of market fee under
Section 27 of the Market Act by the Market Committees concerned.
All past transactions up to the date of this judgment which have
suffered the levy of market fee will not be covered by this judgment
and the collected market fees on these past transactions prior to the F
date of this judgment will not be required to be refunded to any of
the sugar mills which might have paid these market fees.

113. However, one rider has to be added to this direction. If any of
the Market Committees has been restrained from recoveril'.g market fee
from the writ petitioners in the High Court or if any of the writ G
petitioners in the High Court has, as an appellant before this Court,
obtained stay of the payment of market fee, then for the period during
which such stay has operated and consequently market fee was not
paid on the transactions covered by such stay orders, there will .

1. (1999) 9 sec 620. H
52 SUPREME COURT REPORTS [2001] 3 S.C.R.

A remain no occasion for the Market Committee concerned to recover
such market fee from the sugar mill concerned after the date of this
judgment even for such past transactions. In other words, market fees
,,
paid in the past shall not be refunded. Similarly market fees not •
collected in the past also shall not be collected hereafter. The impugned
judgments of the High Court in this group of sugar matters will stand
B set aside as aforesaid. The writ petition directly filed before this Court
also will be required to be allowed in the aforesaid terms."

The aforesaid observations make clear what was implicit in paragraph
89 of the second Synthetics case, namely, that where payment has not actually
c been made to the Market Committee for a period prior to the announcement
of the judgment, by reason of the -assessee having obtained a stay, the
Market Committee was not entitled to recover the market fee, payment of
which had been stayed. It was pithily put in Belsund Sugar Co. Ltd. s, case
(supra) that "in other words market fees paid in the past was not to be
refunded. Similarly market fees !lot collected in the past was not to be
D collected hereafter". These observations are in consonance with the directions
given in paragraph 89 of the judgment in second Synthetics case and applying
the said principles to the present appeals the only conclusion which can be
,.....
arrived at is that this Court intended the status quo as on 25th October, 1989
to be maintained as regards actuat payment or levy was concerned. What had
gone to the coffers to the Government with or without any string attached,
E
was to remain with it and what was not received could not be realised by the
Govemlnent.

It is, of course, true that in respect of the same period i.e. prior to 25th
October, 1989 persons who had obtained stay orders or had otherwise not
F paid the levy would be better off than those who have deposited the sums
...;(

with the Government and are not entitled to receive any refund; This situation,
however, is unavoidable for the simple reason that Article 265 does not pernlit
collection of tax without the authority oflaw. Even though levy prior to 25th ·
October, 1989 may be valid but when in fact no collection was made pursuant
to the said levy, then post judgment in the second Synthetics case collection
G is not permissible. After 25th October, 1989 there was no valid law in existence
which permitted the collection of tax. Shri Venugopal is right in contending
that after 25th October, 1989 the provisions of Section 39 of the U.P. Excise
Act, 1910 which provides for recovery of excise revenue would be inapplicable.
The said Section inter alia states that all excise revenue may be recovered
H from the person primarily liable to pay the same, as arrears of land revenue
SOMAIYA ORGANICS (INDIA) LTD. v. STATE [KIRPAL, J.) 53
or in the manner provided for the recovery of public demands by any law for A
the time being in force. Section 3(1) defines "excise revenue" as meaning
t revenue derived or derivable from any duty if the taxes etc. imposed or
• ordered under the provisions of the Act or of any other law for the time being
in force. Section 3(3a) defines "excise duty" and "countervailing duty" as
meaning any such excise duty or countervailing duty, as may be mentioned
in Entry 51 of List II of the Seventh Schedule of the Constitution. There can B
be no excise duty under the U.P. Excise Act on industrial alcohol because that
would be outside the ambit of Entry 51 of List II of the Seventh Schedule.
Vend fee being regarded as excise duty on industrial alcohol which is not
valid as not falling under Entry 51 of List II cannot be regarded as excise
revenue and, therefore, at least after 25th October, 1989 it would be C
unrecoverable being outside the purview of the Section 39 of the U.P. Excise
Act, 1910. This would clearly be the position as a result of the Court having
declared relevant provisions c.f the U.P. Act as being ultra vires insofar as it
enables the imposition of excise duty on industrial alcohol.

Furthermore in view of the enunciation of the law by this Court in Oswal · D
Agro Mills Ltd. case (supra), a bank guarantee which is furnished cannot be
regarded as payment of excise levy which the Government is entitled to retain.
The furnishing of a bank guarantee is ordered normally in order to ensure
collection of dues. Where, however, the State, as in the present case, has
been held not to be entitled to collect or realise vend fee after 25th October,
1989 it cannot be allowed to invoke the bank guarantee and realise the amount E
of vend fee. What cannot be done directly cannot be done indirectly either.
Furnishing of bank guarantee is only a promise by the bank to pay to the
beneficiary the amount under certain circumstances contained in the bank
guarantee. Furnishing of bank guarantee cannot tantamount to making of
payment as it was to avoid; .making payment of the vend fee that bank F
guarantees were issued. The respondents, in other words, are not entitled to
encash the bank guarantees and realise vend fee in respect of the period prior
to 25th October, 1989.
It is true that the effect of a legislation without legislative competence
is that it is non est. [See: Behram Khurshed Pesikaka v. The State o/Bombayl G
at 652, 653, R.MD. Chamarbaugwalla v. The Union of Jndia 2 at 940, MP. V.
-. Sundararamier & Co. v. The State of Andhra Pradesh & Another, (supra} at
1468 and Mahendra Lal Jaini v. The State of Uttar Pradesh and Others3 at
1. (1955] 1 SCR 613.
2. [1957) SCR 930.
3. (1963) Supp. 1 SCR 912. H
54 SUPREME COURT REPORTS [2001) 3 S.C.R.

A 937-941.]

Nevertheless a law enacted without legislative competence remains on ~

the statute book till a Court of competent jurisdiction adjudicates thereon and ..
declares it to be void. When the Court declares it to be void it is only then
that it can be said that it is nonest for all purposes. In Synthetics and
B Chenlicals case the invalidity of the provisions was a declaration under
Article 141 of the Constitution. It was for doing complete justice that the
Court in exercise of its jurisdiction under Article 142 moulded the relief in such
a way as to give effect to its declaration prospectively. It is not possible to
accept that such an order of prospective overruling is contrary to law. An
invalid law has not been held to be valid. All that has happened is that the
c declaration of invalidity of the legislation was directed to take effect from a
future date.

The principle of prospective over-ruling is too well enshrined in our
jurisprudence for it to be disturbed. Therefore, by reason of the decision in
D second Synthetics case what has actually happened is collection and non-
collection of vend fee prior tO 25th October, 1989 is left untouched. However,
the Court in the second Synthetics case did not specifically deal with the
question of deposits made pursuant to interim orders of Courts. The word
used there was 'realisation'. It might ·have been arguable that the 'deposits'
were not 'realisations' in the sense the word has been used in taxation
E statutes in general and the U.P.Excise Act, 1910 in particular. However, the
interim orders passed by the High Court show that deposits were made of !
vend fee and the purchase tax. Although these 'deposits' were to be kept in
a separate account, nevertheless in the circumstances of. this case, it would
be mere sophistry to hold that the monies so deposited were not 'realisations'
F for. the purposes of the U.P. Excise Act. . Therefore, what was deposited by_
the appellants with the State would remain with it notwithstanding, the interim
orders which required the State to keep it in a separate account but,· at the
same time, what has not been collected by the State cannot be realised by
it, even in those cases where a bank guarantee had "been furnished.
•
G Lastly, while relying on Ma/at/al Industries Ltd. and Others v. Union
ofIndia and Others 1, Shri Dwivedi submitted that the appellants had realised ,,...
the amount of vend fee payable by taking that figure into account while
determining their sale price and, therefore, the State is entitled to recover the ~

same as it would otherwise result· in unjust enrichment to the appellants.
H 1. (1997) s sec S36.
SOMAIYA ORGANICS (INDIA) LTD. v. STATE [RUMA PAL, J.) 55
In Mafatlal's case (supra) the principle of unjust enrichment was invoked A
as refund was claimed even though the amount of excise duty paid had
y already been recovered. This principle resulted in the court declining to order
refund. The principle of unjust enrichment does not apply in the present case,
in view of the direction given in second Synthetics case (supra) that no
refund be given. This is in line with the principle of unjust enrichment. But
that principle cannot be extended to give a right to the State to recover or B
realise vend fee after the statute has been struck down and it has been
categorically stated that "the respondent States are restrained from enforcing
the said levy any further .... ". The contention of the respondents in the teeth
of the aforesaid direction cannot, therefore, be accepted. This is apart from
~
the fact that there is no factual basis on which this Court can conclude that c
the appellants have in fact realised the amount of vend fee and allowing them
to retain it will result in their getting enriched unjustly.

For the aforesaid reasons, C.A. No. 4093of1991 is allowed. Civil Appeal
No. 2853 of 2001 is dismissed. It is declared that the vend fee realised by the
States is not to be refunded to the appellants and, at the same time, the State D
cannot collect any vend fee for the period prior to 25th October, 1989 or
thereafter notwithstanding that notices of demand may have been i<;sued or
.,. recovery proceeding initiated. Parties to bear their own costs .

C.A. Nos. 324of1981, 455, 2795, 1604of1980, 624, 625, 125, 2049 of
E
1981, C.A. Nos. 1122, 181of1981, SLP (C) Nos. 4181, 4297-4298of1980, C.A.
Nos. 215, 341of1981, T.C. Nos. 37-39of1989, C.A. Nos. 2777of1981 and
1607 of1980.

In these appeals apart from the points decided by the judgment in
Somaiya's case (Civil Appeal No. 4093of1991), one of the issues which arises F
pertains to the validity of the export pass fee sought to be levied and realised

.. by the State. Counsel for the parties agree that this and other issues, not
covered by the judgment in Somaiya's case, can now be decided by an
appropriate Bench.

I.A. Nos. 1 & 3 in WP (C) No. 1892 of 1973. G
___.
~

I.A. Nos. 1 and 3 in W.P (C) No. 1892 are dismissed.

>.
RUMA PAL, J While I respectfully concur with the reasoning and
conclusions reached by my learned brother Kirpal, J., I wish to add my views
on an aspect of the 'prospective over-ruling' which was sought to be effected H
56 SUPREME COURT REPORTS [2001] 3 S.C.R.

A by the decision of the Constitution Bench of this Court in Synthetics and
Chemicals Ltd. and Others v. State of U.P and others, [1990] 1 SCC 109.

One of the arguments of the appellant as noted by my learned brother
was that the Court in the Synthetics case by resorting to prospective over-
ruling had in a fact sought to uphold a law upto the period of the judgment
B which law had held to have been passed without competence. It is submit~ed
that the finding that the States were not competent to levy tax on industrial
alcohol meant that the State Acts were non est and that the Court could not
by giving prospective effect to its judgment breathe life into a dead statute
up to the date of the judgment. It was also contended by the appellant that
C even under Article 142, the Court could not whittle down or act in derogation
of any constitutional provision. By declaring that the statute was valid up to
the date of the judgment, according to the appellant, the specific constitutional
provisions, namely, Article 246 and Article 245 were infringed. Reliance has
been placed on the decision of this Court in Prem Chand Garg v. Excise
Commissioner, UP, Allahabad, [1963] 1 SCR 885 and Supreme Court Bar
D Association V. Union of India and Another, [1998] 4 sec 409.

The argument of the appellant proceeds on a misunderstanding of the
effect of prospective over-ruling. As has been elaborately stated in my learned
brother's judgment, by prospective over-ruling the Court does not grant the
relief claimed even after holding in the claimant's favour. In this case, the
E Court held that the statutory provision imposing vend fee was invalid. Strictly
speaking, this would have entitled the appellant to a refund from the
respondents of all amounts collected by way of vend fee. But because, as
stated in the Synthetics decision itself, over a period of time imposts and
levies had been imposed by virtue of the earlier decision and that the States
F as well as the petitioners and manufacturers had adjusted their rights and
their positions on that basis, this relief was denied. The Court did not, by
denying the relief, authorise or validate what had been declared to be illegal
or void nor did it imbue the legislature with competence upto the date of the
judgment.

G VS.S. C.A. No. 4093/91 allowed.
C.A. No. 2853/2001, dismissed.
-
I.A. Nos. I & 3 in WP. (C) No. 1892/73, dispossed of.