JUDGMENT - C. MOOKERJEE, C.J.:---This writ petition had come up for final hearing before Ashok Agrawal, J. The learned Single Judge was of the view that the levy and collection of excise duty by the respondents upon the photographic printing papers manufactured by the petitioner No. 1 New India Industries Ltd. according to the price charged by its sole distributor Agfa Gevaert (India) Ltd. was illegal and unauthorised. The respondents had opposed the petitioners' claim for refund of excise duty, inter alia, on the ground that the petitioner No. 1 had already passed on the burden of the said duty. Therefore, the petitioners ought not to be allowed to unjustly enrich themselves by obtaining an order for refund. In view of difference of opinion on the said question between different Benches of this Court, Ashok Agarwal, J., has made the present Reference for deciding the following question :--

"Where the tax admittedly or has been held to be levied and collected by the State without the authority of law, whether refund of the tax must be granted to the assessee or applying the principle of 'unjust enrichment' no refund should be made to the assessee unless he can pass on the benefit to

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