ORDER A.N. Dikshita, J.
1. This application under Section 12 of the Contempt of Courts Act has been filed by the applicant DCM Limited, Daurala Sugar Works, Daurala against Sri V. R. Sinha, Excise Commissioner, U. P. Allahabad for punishing the opposite party for wilfully disobeying the writ, issued by this court by judgment and order dated 31st January 1977 passed in Writ Petition No. 419 of 1975 and judgment dated 28th July 1986 passed in Writ Petition No. 976 of 1985.
2. This application was admitted on 19-1-1987. It so transpires that the applicant had filed Writ Petition No. 419 of 1975 before this court challenging the legality and validity of export duty levied on rectified spirit and Indian made foreign liquor, by the Government of Uttar Pradesh in pursuance of the Notifications issued under Section 28 and 29 of the U. P. Excise Act, 1910. This writ petition was allowed by this court vide judgment dated 31st January 1977 with a direction that the Government of U. P. shall refund the amount paid by the petitioner towards export duty on rectified spirit. The petitioner in pursuance of the Notifications issued under Section 28 and 29 of the U. P. Excise Act, 1910 levying export duty on rectified spirit, deposited a sum of Rs. 22, 53, 366.99 paise with the Excise Commissioner, Allahabad prior to the filing of the writ petition. However, the petitioner was protected from depositing further amount of export duty during the pendency of the writ petition. It has been alleged that while Excise Commissioner refunded the export duty in pursuance of the aforesaid judgment dated 31st January, 1977 the applicant denied such payment. However, after about 21 months M/s. Ganganagar Sugar Mills Limited filed a writ petition No. 1839 of 1978 praying for a 'direction that the export duty claimed by the petitioner should not be refunded to it but should, in fact be refunded to M/s. Ganganagar Sugar Mills Limited.
3. A restraint order was passed by this court on 21-2-78 by which refund to respondent Nos. 2 to 8 was stayed. Subsequently writ petition No. 1839 of 1978 was withdrawn by M/s. Ganganagar Sugar Mills Limited and the interim order dated 21-2-1978 was vacated. Some litigations ensued between applicant Ganganagar Sugar Mills Limited in Delhi High Court. The applicant then filed another writ petition No. 976 of 1985 D. C. M. Limited v. State of U.P. and another seeking a mandamus to the respondents to refund the export duty. This writ petition was allowed by order and judgment dated 28th July 1986 passed by Hon'ble Mr. Justice N. D. Ojha as he then was and Hon'ble Mr. Justice R. R. Mishra and the respondents were .directed to refund the said amount.
4. Aggrieved against the said order, the State of U. P. and the Excise Commissioner, U. P. at Allahabad filed Special Leave Petition before Hon'ble Supreme Court (S.L.P. No. 13311 of 1986) but was dismissed. In pursuance of the judgment of this Court dated 28th July 1986 passed in Writ Petition No. 976 of 1985 the applicant furnished Bank Guarantee of the Oriental Bank of Commerce for Rs. 22,53,366.99 paise before the respondent. This bank guarantee was annexed with the letter dated 28th August 1986 whereafter the said amount was claimed.
5. On 5th September, 1986 the petitioner received a letter from the office of the opposite party that the stamp duty on the bank guaratee is not sufficient. Another bank guarantee was furnished and was sent with the letter dated 10th September, 1986. Again the opposite party sent a letter dated 23rd September, 1986 stating therein that the petitioner should file a Bank guarantee in the pro forma enclosed in the said letter. Certain correspondence ensued between them but the amount was not paid.
6. Hence this application for taking appropriate action against the opposite party.
7. This application was admitted and notices were issued to the respondent to show cause why he should not be punished for disobeying the orders passed by this court dated 28th July 1986. Sri V. K. Sinha, the then Excise Commissioner to whom notices were issued has filed a short counter-affidavit. It is emerging from the perusal of this affidavit that the amount in question was deposited in Government Treasury, Meerut. It has been shown that the opposite party Sri V. K. Sinha joined as Excise Commissioner, U. P. on 14-6-1986. Several letters were sent by him to the Government seeking instructions and orders of the State Government but no orders of the Government has yet been received. It has also been shown in the counter-affidavit that relevant rule regarding the refunds of Government revenue is given in para 196 of the Financial Hand Book Vol. 5 (Account Rules) Part I, Chapter IX which reads as under:
"196 :-- The sanction necessary for refund of revenue is regulated by the orders of the Government and subordinate authorities. These orders will be found in departmental manual."
In the counter-affidavit Rule 181 of Excise Manual has also been reproduced below:--
"Refunds of revenue may be sanctioned by the Collector but in cases of doubt a reference should be made to Excise Commissioner for orders. All refunds should be noted against the original payment in the remarks column of the register in which payment was noted, viz., Form Gl, 22, 3, 4 and 6 as the case may be."
It was thus submitted on behalf of the opposite party that the Collector is the competent authority to refund the government revenue and all this situation has arisen in view of the Collector having not been made the party.
8. Lastly, the opposite party has tendered unqualified apology for the same.
9. During the pendency of the case an application was filed on behalf of the applicant to withdraw the aforesaid contempt application. I have doubt whether such an application is maintainable or not in view of the application having been admitted and show cause notice has been issued to the opposite party.
10. Heard the learned counsel for the parties. It was considered necessary to seek assistance of the learned Advocate General also in this case. He has very ably and strenuously submitted that the opposite party is not guilty of disobeying the orders. The officers of the State have to act in a specified manner with certain restrictions and limitations. The opposite party was writing so many times to the Government in regard to the refund of the amount. The opposite party had no control over the Collector of Meerut where the amount was deposited.
11. I am satisfied that the opposite party Sri V, K. Sinha has not disobeyed the orders of this Court. In any case he has tendered unqualified apology which in -the circumstances of the case is accepted though not required.
12. In the result, the application fails and is hereby dismissed.