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Wednesday, November 30, 2016

Rajasthan High Court in R. S. Shekhawat’s case as noted above has permitted the contractor to approach the mining department for refund of the amount which was deducted from the bill in event they successfully prove that minerals used by them were minerals for which royalty was already paid. The aforesaid directions clearly protected the interest of the contractors and we are of the view that the appellant's interests are amply protected with the aforesaid directions issued by Rajasthan High Court. 42. We, however, deem it appropriate to give liberty to the appellant to approach the mining engineer, Respondent No. 2 by a written representation giving details of amount deducted from its bills or amount withheld along with the details of minerals used by contractors with details of proof to establish that minerals used were minerals for which royalty was paid as per 1986 rules. The Mining Engineer/Assistant Mining Engineer, the Respondent No. 2 may consider the representation and take an appropriate and reasoned decision expeditiously preferably within three months of submission of the representation and, in event it is found that appellant is entitled to refund of any amount, appropriate consequential action may be taken. 43. The Civil Appeal is disposed of with the above directions.


                        IN THE SUPREME COURT OF INDIA

                         CIVIL APPELLATE JURISDICTION

                       CIVIL APPEAL NO. 11259 OF 2016
                  (Arising out of SLP(C)No. 12882 OF 2009)




                               J U D G M E N T


      Leave Granted.

2. This appeal has been filed against the judgment  of  the  High  Court  of
Judicature for Rajasthan, Jaipur Bench,  Jaipur  dated  17.12.2008  in  D.B.
Civil Special Appeal No. 231 of 2008 by which judgment,  the  Civil  Special
Appeal filed by the appellant against judgment and order of  Learned  Single
Judge dated 20.02.2007 was dismissed. Brief facts necessary to be noted  for
deciding the appeal are:-

      The appellant, a contractor, licensed by Nagar Nigam, Jaipur has  been
carrying out constructions of buildings,  roads,  drains,  footpaths,  etc..
The appellant for carrying out his  construction  work  uses  Bazri,  stone,
grit, moram, etc. which is claimed to be purchased from an  open  market  at

3.     State  of  Rajasthan  has  issued  various  Government  Orders  dated
20.02.1994, 08.11.1996 and 20.11.1996 by which provision of deduction of  2%
towards  the  royalty  of  minerals  from  bills  of  contractors   of   the
construction department was  made.  The  State  of  Rajasthan  modified  the
scheme by issuing an order dated 13.11.2000 by which the earlier  Government
Orders providing for deductions of 2% as royalty of minerals from  the  bill
was done away. A new scheme was enforced vide order dated 13.11.2000.  Under
the new scheme, the copy of work order issued by Construction Department  to
the contractors containing details of the quantity of the minerals used  for
construction was  required  to  be  produced  before  the  Mining  Engineer/
Assistant Mining Engineer, who before the commencement of  the  mining  work
were required to issue short term permission letter for use  of  mineral  in
the construction.

4.    Another  Government  Order  was  issued  dated  03.10.2001  by  which,
direction nos. 2 & 4 as contained in  the  circular  dated  13.11.2000  were

5.    Further,  directions  were  issued  on  25.01.2002.   A  letter  dated
26.03.2002 was issued by the Government to  the  Chief  Executive  Engineer,
Commissioner, Jaipur Municipal Corporation referring  to  Government  Orders
dated  03.10.2001  and  13.11.2000  and  requesting  the  Jaipur   Municipal
Corporation to ensure compliance of the aforesaid Government Orders. It  was
further stated that until the No Dues certificate is  issued  in  favour  of
the contractors by the Department of Mining, payment against final  bill  of
the contractors be not made so that Department and State may not suffer  any
kind of revenue loss. The appellant  filed  the  writ  petition  being  Writ
Petition No. 3191 of 2002 praying for the following reliefs:-

“a. By way of writ, order or direction the order dated 26.03.2002  Annexure-
5 passed by the respondent No. 3 may kindly be quashed and set aside.

b.    by way of writ order or direction, the respondents may  be  restrained
not to collect royalty from the petitioners  on  purchase  of  Bazri,  grit,
stone, moram etc from the open market.

c.    by way of writ order or direction, the respondents may  be  restrained
to not to levy royalty from the running and final bills of  the  contractors
i.e. petitioners awarded prior to 26.03.2002.

d.     any  other  appropriate  writ,  order  or  direction  to  which   the
petitioner may be entitled to in  the  circumstances  of  the  case  may  be
issued in his favour.

e.     cost  of  the  writ  petition  may  be  awarded  in  favour  of   the

6.    The Writ Petition filed by  the  appellant  was  disposed  of  by  the
learned Single Judge on 20.02.2007. Learned Single Judge  disposed  of  writ
petition in terms  of  an  earlier  judgment  in  SBCWP  No.  359  of  1998,
R.S.Shekhawat & Others Vs. State of U.P. decided on 28.02.2001.

7.    The appellant aggrieved by the decision of learned Single Judge  dated
20.02.2007 filed DBCSA No. 231 of 2008. The Division Bench held  that  there
is  no  illegality  in  order  passed  by  the  learned  Single   Judge   in
R.S.Shekhawat and others case  (Supra),  hence,  the  learned  Single  Judge
disposing of the writ petition of the appellant did  not  commit  an  error.
The appeal was accordingly dismissed. Aggrieved by the decision of the  D.B.
dated 17.12.2008, the appellant has filed the present appeal.

8.    Learned counsel for the appellant in support of  the  appeal  contends
that both learned Single Judge and Division Bench  of  High  Court  did  not
decide the issues raised by the appellant in  the  writ  petition  and  have
disposed of the writ petition  in  terms  of  earlier  judgment  of  learned
Single Judge, R.S.Shekhawat and others in  which  judgment  no  issues  were
decided. He submits that Judgment in R.S.Shekhawat Case indicates  that  the
Court did not enter into the correctness or otherwise  of  the  notification
dated  22.09.1994  &  03.07.1994  which  were  under  challenge.  The  Court
noticing the new scheme as issued  by  Government  Order  dated  13.11.2000,
noted the request of the  appellant  that  matter  may  be  directed  to  be
examined by the Department of Mines on which request the writ  petition  was
disposed of.

9.    It is submitted that the above judgment  did  not  decide  the  issues
raised by the appellant which were required to be considered. It is  further
submitted that the payment of royalty is to be made by lessees or  licensees
who have been granted right of excavation  of  minerals  i.e.  a  holder  of
mining lease or license. The appellant who has been purchasing the  minerals
from the open market cannot be saddled with  the  payment  of  royalty.  The
appellant is not carrying out any mining operation so  as  to  be  asked  to
make payment of royalty.

10.   Learned counsel for the State disputing  the  submissions  of  counsel
for the appellant submits that the various Government Orders  by  the  State
of Rajasthan have been issued to prevent the illegal mining i.e. use of  the
minerals  without  payment  of  the  royalty.   It  is  submitted  that  the
Government Orders provide for a mechanism to  check illegal  mining  and  in
event minerals used are minerals which are  royalty paid minerals, there  is
no liability and the  Government only requires verification  of  such  facts
i.e. whether minerals used by the contractors are royalty   paid   or   not.
      It is submitted that direction for withholding the  payment  till  the
verification of above facts are  only  for  the  purpose  of  ensuring  that
minerals used are not illegally mined minerals without payment  of  royalty.
He submit that no error was  committed  by  learned  Single  Judge  and  the
Division Bench in disposing of the writ petition giving liberty to the  writ
petitioner to approach the competent authorities in  the  mining  department
to prove that minerals used by them are all royalty paid.

11.   We have considered the submission of learned counsel for  the  parties
and have perused the records.

12.   The  Parliament  has  enacted  Mines  and  Minerals  (Development  and
Regulation) Act, 1957, for the  development  and  regulation  of  mines  and
minerals. The Union control  on  regulation  of  mines  and  development  of
minerals has been declared by virtue of Section 2 of 1957 Act. Section  3(e)
defines 'Minor Minerals' which is to the following effect:-

“3(e).      'Minor Minerals' means building stones, gravel,  ordinary  clay,
ordinary sand other than sand used for prescribed purposes,  and  any  other
mineral which the Central Government may, by notification  in  the  Official
Gazette, declare to be a minor mineral;”

13.   By Section 15 of the Act, the State Government has been  empowered  to
make rules on Minor minerals.

14.   Section 9(2) provides for payment of royalty by the holder  of  mining
lease. Section 9(2) is as follows:-

“9(2).       The  holder  of  a  mining  lease  granted  on  or  after   the
commencement of this Act shall  pay  royalty  in  respect  of  any  (mineral
removed or consumed by him or by his agent,  manager,  employee,  contractor
or sub-lessee) from  the  leased  area  at  the  rate  for  the  time  being
specified in the Second Schedule in respect of that mineral.”

15.   By Act 25 of 94, certain amendments have  been  incorporated  in  1957
Act. One of the sections inserted  by  Amendment  is  Section  23C.  Section
23C(1) is as follows:-

“23C. Power of  State  Government  to  make  rules  for  preventing  illegal
mining, transportation and storage of minerals:-

(1). The State Government may, by  notification  in  the  Official  Gazette,
make rules for preventing illegal  mining,  transportation  and  storage  of
minerals and for the purposes connected therewith.

(2)  ..............................”

16.   The State  of  Rajasthan  has  framed  Rajasthan  Mines  and  Minerals
Concession Rules, 1986, in exercise  of  power  under  Section  15.  Section
3(2)(XX) defines ‘Royalty’ which is to the following effect:-

“Royalty means the charge payable to the Government in respect  of  the  ore
or mineral excavated, removed or utilized from any  land  as  prescribed  in

17.   Rule 18 provides for conditions which are  to  be  included  in  every
mining lease. According to Section 18(1)(b), the holder of  a  mining  lease
granted on or after  commencement  of  these  rules  shall  pay  royalty  in
respect of any mineral removed  by  him  from  and/or  consumed  within  the
leased area at the time being as specified in Schedule I in respect of  that

18.   Rule 48  contains  various  provisions  with  regard  to  unauthorized
working. Various provisions regarding undertaking of  mining  operation  not
in accordance with the mining lease have been contained  in  Rule  48  which
also includes seizure of illegally mined minerals and  recovery  of  royalty
and tax chargeable as well as compounding charges.

19.   Above statutory provisions clearly indicates that excavation of  minor
minerals, as per mining lease or permit is subject  to  payment  of  royalty
and the rent as prescribed in the rules. The liability to  make  payment  of
royalty is on the person who excavates  the  minerals  under  the  lease  or

20.   The provisions also indicate  that  in  event  of  illegal  mining  or
excavation of  minerals  without  payment  of  royalty,  the  rules  empower
exercise of various  powers  including  seizure  of  minerals,  recovery  of
royalty, taxes and compounding charges on such minerals.

21.   The first submission which has been  raised  by  learned  counsel  for
appellant is that learned Single Judge and Division Bench did  not  consider
the issues raised in the writ petition and disposed of the matter  in  terms
of earlier judgment of R.S.Shekhawat case  in  which  case  no  issues  were
decided. The judgment of R.S.Shekhawat is brought on record as  Annexure  P-

22.   The above judgment  indicates  that  in  writ  petition,  notification
dated 22.09.1994 and 03.07.1995  by  which  2%  deductions  were  made  from
running bills submitted by petitioners to the Public  Works  Department  and
other State Departments towards royalty of  minerals  was  under  challenge.
The petitioners of that  case  were  engaged  in  business  of  constructing
roads, buildings and were using different varieties of  minerals  purchasing
it from the open market. However, when the writ petition came  for  hearing,
the court noticed the subsequent development  by  which  the  aforesaid  two
notifications were substituted by a new scheme dated 13.11.2000.

23.   The petitioner of that case, in view  of  the  subsequent  development
did not press for adjudication regarding the notification  dated  22.04.1994
and 03.07.1994 but prayed for the refund of the royalty deducted from  their
bills. The petitioner suggested that the  matter  may  be  examined  by  the
Department of Mines itself. It is useful to note  following  observation  in
the judgment:-

“ already stated the counsel for the petitioner as also other  counsels
appearing in all these writ petitions, no longer consider  it  necessary  to
insist for adjudication of the question as to whether the two  notifications
dated 22.09.1994 and 03.07.1994 are legal or not in view of the fact that  a
new  scheme  on  13th  November  2000  referred  to  hereinbefore  has  been
implemented but insofar as deductions  already  made  by  the  Public  Works
Department and other Departments on  behalf  of  the  Mining  Department  is
concerned, the same requires adjudication by the  Department  of  Mining  to
ascertain whether the petitioners  at  any  point  of  time  prior  to  13th
November 2000 had used minerals in  their  construction  operations  or  not
which were not royalty paid  and  for  this  purpose  the  counsel  for  the
petitioners have themselves suggested that the matter  be  examined  by  the
Department of Mines in order to  come  to  a  just  conclusion  whether  any
wrongful deduction had been made in the running bills by  the  Public  Works
Department and other Departments or not in regard to the amount  of  royalty
for the minerals used...”

24.   The aforesaid writ petition was thus disposed  of  giving  liberty  to
the petitioner to  approach  the  Department  of  Mines  with  the  relevant
records for assessment and explaining the position  for  whether  the  claim
for refund or adjustment is sustainable or not.

25.   When the writ petition no. 3191 of 2002 filed by  the  appellant  came
for consideration on 20.02.2007, the learned Single Judge after  considering
the judgment in R.S.Shekhawat case,  disposed  of  the  writ  petition  with
following directions:-

“...Having  perused  the  aforesaid  judgment  and  considering  the   rival
arguments of the learned counsel for the parties,  I  am  not  persuaded  to
take any other view of the matter than the  one  taken  by  the  Co-ordinate
Bench in the aforesaid judgment.

      The  writ  petition  is  accordingly  disposed  of  in  terms  of  the
aforesaid directions. The observations made  and  directions  given  in  the
aforesaid judgment shall also apply to the present case.”

26.   The Division Bench also affirmed the aforesaid judgment.

27.   From the prayers as made in  the  writ  petition,  it  is  clear  that
principle prayer made by the writ petitioners was challenge to  D.O.  letter
dated 26.03.2002  issued  by  the  Office  of  Mining  Engineer,  Mines  and
Geology, addressed to Commissioner, Jaipur Municipal Corporation, Jaipur.

28.   The writ petition in R.S.Shekhawat case was decided on  28.02.2001  by
which date the letter dated 26.03.2002 was not  even  in  existence.  Letter
dated 26.03.2002 being subsequent in point of  time  from  the  judgment  of
R.S.Shekhawat case, it was necessary to look into the content of the  letter
and to take decision thereafter. We thus find substance  in  the  submission
for the learned counsel for the appellant that letter dated  26.03.2002  was
also necessary to be looked into before deciding the writ  petition  of  the
appellant and without referring to the letter  dated  26.03.2002,  the  writ
petition of the appellant ought not to have been disposed of.

29.   We thus, in view of the above, proceed  to  examine  the  contents  of
D.O. letter dated 26.03.2002 and   submissions  made  by  the  appellant  in
support of the appeal.

30.   The submission which has been pressed by the counsel of the  appellant
is that payment of royalty is contemplated from holder of a mining lease  or
permit. As noted above, the statutory  scheme  clearly  indicates  that  the
royalty is required to be paid by mining lease holder or permit  holder  for
excavation of a minor mineral and no mineral is to be removed  or  excavated
without payment of the royalty.  For  mining  of  all  minerals  payment  of
royalty is necessary.

31.    It  is  however  also  relevant  to  note  that  where   mineral   is
excavated/transported/removed  without  payment  of   royalty,   there   are
specific provisions for seizure of such minerals, recovery of  royalty,  tax
and compounding charges. The statute thus takes care of payment  of  royalty
for even those minerals which have been illegally mined  or  excavated.  The
lease holders or permit holders who excavate the minerals  under  the  lease
or license are obliged to make payment of royalty  and  in  event  any  such
mineral is found to be removed by lessee or their agents without payment  of
royalty, statute contains ample provisions to  ensure  recovery  of  royalty
and fine etc.

32.   As noted above, the  earlier  Government  Orders  dated  22.09.1994  &
03.07.1995 provided  for  2%  deductions  from  the  running  bills  of  the
contractors of public works department and other state  departments  towards
the royalty of minerals which were used by contractors in building of  roads
etc. The Scheme as provided  under  the  aforesaid  Government  Orders  were
subsequently withdrawn and a new scheme was  enforced  by  Government  Order
dated 13.11.2000 and 03.01.2001. By Government  Order  03.01.2001  modifying
earlier direction dated 13.11.2000, following was directed:-

“After  carrying  out  amendment  in  the  even  numbered   Circular   dated
13.11.2000 related to guidance to recover the royalty against  the  minerals
used in various works by the Contractors of Government Works Department  and
substituting the Paras 2 and 4 of the above Circular,  following  directions
are issued:-

"(2) Before commencement of mining work by the  Contractor  of  Construction
Department,  Short  Term  Permission  Letter  for  mineral   used   in   the
construction from the Mining Department shall be obtained and shall have  to
deposit the fee fixed for it and cost of Khanna Book  with  the  Department,
but amount of royalty payable on the quantity of the  mineral  mentioned  in
the short term License will be  deducted  from  the  running  bills  of  the
contractor by the concerned Construction Department  on  the  basis  of  the
quantity of the mineral used in the construction.

(4) On completion of the construction work, complete details of the  mineral
such as quantity of the mineral, source of receiving mineral and details  of
the amount deducted from the bill  etc.  utilized  by  the  Contractor  duly
verified by the Executive Engineer of the concerned Construction  Department
shall be submitted to Mining Engineer/Assistant Mining  Engineer  within  15
days and further a Certificate  of  Construction  Department  will  also  be
produced in which quantity of the mineral used in the construction has  been

33.   A further Government Order was issued on  25.01.2002  which  has  been
brought on record as Annexure P-4 by which  certain  other  directions  were
issued for ensuring that the payment of royalty regarding all minerals  used
is made and the mining engineer was required to keep  all  details  and  the
contractors were also to  obtain  short  term  permission  for  use  of  the
minerals as per work order.

34.   A letter dated 26.03.2002 was issued by the  Mining  Engineer  to  the
Commissioner Municipal Corporation,  Jaipur,  whereunder  the  attention  of
Commissioner,  Jaipur  Municipal  Corporation,  Jaipur  was  drawn   towards
circular dated  03.10.2001  of  the  State  Government  and  circular  dated
13.11.2000, and the commissioner was informed that although the  information
of the circular has been sent earlier to the Jaipur  Municipal  Corporation,
the amount of royalty  has  not  been  received.  The  Commissioner,  Jaipur
Municipal Corporation was requested to arrange to send royalty on the  basis
of the quantity of the minerals used in the  contract  of  the  construction
work given by to the contractor by subordinate offices of  Jaipur  Municipal
Corporation before end of the financial year.

35.   The letter dated 26.03.2000  impressed  upon  Commissioner  of  Jaipur
Municipal Corporation  to  ensure  compliance  of  Government  Orders  dated
13.11.2000 and 03.10.2001 which has been noted  earlier.  The  appellant  in
writ petition has only challenged the letter dated 26.03.2002  but  has  not
challenged the Government Circulars issued earlier which was  sought  to  be
complied by the said letter.

36.   Learned counsel for the State is right in his submissions  that  since
appellant did not  challenge  the  aforesaid  two  circulars  of  the  State
Government where scheme for realization of the royalty from the  contractors
for use of the minerals was enforced, the state had no occasion to give  all
relevant facts pertaining to two earlier  circulars  by  which  royalty  was
sought to be recovered. In the present  writ  petition  only  prayer  is  to
quash the letter dated 26.03.2002, which  is  only  a  letter  to  Municipal
Commissioner Jaipur to ensure compliance of  Circulars  dated  13.11.2000  &
03.01.2001. There being no challenge to Circular's 13.11.2000  &  03.01.2001
in the writ petition and the State had no opportunity to  defend  its  above
policy it is not appropriate for this Court to embark upon the  adjudication
of above Government Scheme. The letter dated 26.03.2002 being only a  letter
to ensure compliance of Circulars dated 13.01.2000 &  03.01.2001,  no  fault
can be found in the said letter.

37.   A Counter Affidavit has already been filed by the Respondent No.  1  &
2, the State of Rajasthan and Mining Engineer in the present appeal. In  the
counter affidavit, State has come up with the case that the  liabilities  to
pay royalty rest with contractors/lease holders to  whom  mining  lease  are
bestowed. It is  further  pleaded  that  in  case  the  minerals  have  been
procured from the legal source on which royalty have been paid, there is  no
royalty payable subsequently. In sub-paragraph IV of the counter  affidavit,
following was stated:-

“IV.   That the contents of para IV of the questions of law are wrong,  ill-
advised and are hence denied. It is submitted  that  the  liability  to  pay
royalty rests with the contractors/lease holders to whom the  mining  leases
are bestowed but in order to prevent losses on account  of  rampant  illegal
mining  and  subsequent  usage  of  such   illegally   mined   minerals   in
construction work, the department of mines of the State of Rajasthan  issued
circulars from time to  time  calling  upon  vendors/contractors  registered
with Public Works Department of the State who carry out  construction  works
to place before it  the  records  of  the  minerals  having  been  purchased
legitimately and that such minerals have  not  been  procured  from  illegal
mining to determine whether royalties on such minerals have  been  paid.  In
case, the minerals have been procured  by  vendors/contractor  from  illegal
mining, the royalties due to the State can be recovered. The said  circulars
categorically state that, in case minerals have  been  procured  from  legal
sources on which royalties have been paid, there  is  no  royalties  payable
subsequently. However, in case  such  minerals  are  procured  from  illegal
mining,   then   the   royalties   that   have   been   usurped    by    the
vendors/contractors must be paid to the State.  There  is  no  infirmity  or
illegality in such a circular which is intended to legitimately collect  the
royalties due to the State and which have not been paid.”

38.   It is further stated in the counter affidavit that in event  appellant
has procured the minerals  from  open  market,  the  appellant  should  have
presented the documents to prove that such  minerals  used  in  construction
work were purchased legitimately and then no royalty shall be  paid  to  the
State by the appellant on such mineral in such a case.

39.   It is submitted that in spite of department  communication  18.02.2008
and 16.02.2009  calling  upon  the  appellant  to  produce  the  records  of
purchasing the minerals from  open  market,  the  appellant  has  failed  to
produce any such record of such purchase. In paragraph VIII,  following  has
been stated:-

“VIII. That the contents of  corresponding  para  no.  VIII  are  wrong  and
denied. It is submitted that as per the circular issued  by  the  department
under Rule 63 of Rajasthan Minor Minerals  Concession  Rules,  1986,  it  is
mandatory for all contractors enlisted /registered  with  the  Public  Works
Department cited above to obtain 'Short Terms Permit' for  the  minerals  to
be used  in  construction  works.  In  case  the  petitioner  purchased  the
minerals from the open market, then the petitioner should have produced  the
relevant documents to prove that such minerals used  in  construction  works
was purchased legitimately. However, in spite  of  the  communications  from
the  department  dated  18.02.2008  and  16.02.2009  in  this  regard,   the
petitioner has  failed  to  produce  any  documents  that  proves  that  the
minerals have been purchased legitimately from the open market. It is  clear
that the petitioner does not possess any  documents  that  prove  that  such
minerals have been procured through legitimate means and hence it  is  clear
form  the  conduct  of  the  petitioner  that  such  minerals  are  procured
illegally and are illegally mined.”

40.   The circulars issued by the State Government  including  the  circular
dated 13.11.2000 as well as circular dated 03.10.2001 has to be  interpreted
to mean that circular requires payment of royalty with regard to only  those
minerals which have been used by the contractor for  which  no  royalty  was
paid. The circular cannot be interpreted to mean  as  requiring  payment  of
royalty for minerals used for which once royalty has already been paid.  The
state has come up with  the  above  mentioned  Government  Order  only  with
object to ensure that contractors do not use minerals which are not  royalty

41.   Rajasthan High Court in R. S. Shekhawat’s  case  as  noted  above  has
permitted the contractor to approach the mining  department  for  refund  of
the amount which was deducted from  the  bill  in  event  they  successfully
prove that minerals used  by  them  were  minerals  for  which  royalty  was
already paid. The aforesaid directions clearly  protected  the  interest  of
the contractors and we are of the view that the  appellant's  interests  are
amply protected with the  aforesaid  directions  issued  by  Rajasthan  High

42.   We, however, deem it appropriate to give liberty to the  appellant  to
approach the mining engineer, Respondent No. 2 by a  written  representation
giving details of amount deducted from its bills or  amount  withheld  along
with the details of minerals used by contractors with details  of  proof  to
establish that minerals used were minerals for which  royalty  was  paid  as
per  1986  rules.   The  Mining  Engineer/Assistant  Mining  Engineer,   the
Respondent No. 2 may consider the representation  and  take  an  appropriate
and reasoned  decision  expeditiously  preferably  within  three  months  of
submission of the representation and, in event it is  found  that  appellant
is entitled to refund of any amount, appropriate  consequential  action  may
be taken.

43.   The Civil Appeal is disposed of with the above directions.

                                (PINAKI CHANDRA GHOSE)

                                                      (ASHOK BHUSHAN)
NOVEMBER 25,  2016.

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