An assessee is entitled to a refund of excise duty paid under protest if the Appellate Collector, in an appeal, directs the grant of consequential reliefs, which necessarily includes a refund of the duty unlawfully realized.

( 1 ) DURING the period between August, 1961 and May, 1968 a dispute arose about the classification of M. G. Poster Paper manufactured by the petitioner, the Central Excise authorities claimed that the M. G. Poster Paper was assessable to duty under Tariff Item 17 (4) as packing wrapping paper whereas the contention of the petitioner company was that the M. G. Poster Paper should be assessed to duty under tariff Item 17 (3) as printing/writing paper. The Central Excise authorities collected duties on the goods manufactured by it under tariff Item 17 (4) and such duties were paid by the petitioner under protest.

( 2 ) THE petitioner company preferred appeals to the appellate authorities. The appellate proceedings contained for a long time. The matters went upto the Supreme Court. The Supreme Court remanded the cases back to the Collector for deciding afresh on 3rd May 1968. The Appellate Collectoi of Cciucal Excise decided 32 appeals pending before him for different periods and against different orders by an order dated 30th November, 1973 jn favour of the petitioner company. These appellate orders of the Appellate Collector was reviewed by the Government of India and by an order dated 30th September, 1976 the Government of India directing the Appellate Collector to decide the matters afresh after setting aside the order dated 30th November, 1973.

( 3 ) THE Appellate Collector once again heard the appeals and by two several orders dated 9-6-1980 and 10-7-1980 disposed of all the appeals and held that M. G. Poster Paper should be classified as printing/writing paper and not as packing/wrapping papers. The Appellate Collector directed the Excise Department to grant consequential reliefs to the petitioner in both the aforesaid orders.

( 4 ) THE petitioner on 23rd July, 1980 applied to the Assistant Collector for giving effect to the orders dated 9th June, 1980 and 10th July, 1980 passed by the Appellate Collector. The Assistant Collector by his order dated 3rd October, 1980 refused to grant refund to the petitioner on two grounds.

( 5 ) FIRSTLY, in both the appellate orders, the learned Collector had directed to grant consequential reliefs to the appellant. But it had not been categorically stated the rein to grant the refund of excise duty.

( 6 ) THE second ground was that the petitioner company sold poster papers manufactured by it to a number of customers/wholesalers. Whatever duty has been paid by the company had been realised in full from all such customers. Since the company had already passed on the entire burden of levy of excise duty to their customers from whom they had collected in full the amount of excise duty paid to the department, no refund of the said duty could be claimed by the company. If any customer of the company from whom excise duty had been collected came with a claim of refund on the ground of any duty unlawfully collected by the company, a question of refund might have arisen. But in this case, if any refund is granted to the company, it will accrue to them "as fortuitous benefit because this benefit cannot be passed on to the actual consumers of the goods who have already accepted the burden of taxation. "

( 7 ) THE claim for refund, therefore, was rejected by the Assistant Collector, Central Excise and Customs, Sambalpure.

( 8 ) THE Appellate Collector of Central Excise in both the orders dated 9th June, 1980 and 10th July, 1980 had set aside the orders under appeal and directed that 'consequential reliefs be granted to the appellants'. This order has to be carried out by the Assistant Collector. Consequential reliefs in this context can only mean refund of the duty that has been collected from the appellant company. The appeal was against classification and consequential levy of duty on M. G. Poster Paper. The appellant succeeded in the appeals. Consequential relief can only mean refund of the duty unlawfully realised from the appellant. There cannot possibly be any other