Manmohan Sarin, J.

( 1 ) PETITIONERS are aggrieved by the rejection of their application for refund of stamp duty by the impugned order dated 14th June, 2004 passed by the Collector of stamps. The order is a short one and may be reproduced for facility of reference:-

SUB: refund of Stamp Duty in r/o flat No. 6061/3, Sect-D, Pkt-6, vasant Kunj, New Delhi. Sir, with reference to your letter No. nil dated 25. 9. 03 and subsequent reminder on the subject cited above. Your case for refund was examined and rejected by the competent authority being not admissible under the provision of u/s 49 of the "indian Stamps Act" 1899. "

( 2 ) THE facts giving rise to the petition may be briefly noted:-

(I) petitioners had applied for allotment of a SFS flat. It was allotted to the petitioners. Petitioners duly paid consideration amount of Rs. 14,28,043/- (Rs. Fourteen lacs twenty eight thousand forty three only ). Additionally, petitioners deposited stamp and transfer duty @ 13% i. e. 8% + 5% respectively, amounting to rs. 1,78,770/ -. Petitioners case is that possession of the flat was given on 12th June, 2003. Petitioners submitted the conveyance papers for adjudication on 3rd March, 2003, and duty was paid on 18th March, 2003. Conveyance was executed on 30th june, 2003. It was duly registered on 8th August, 2003.

(II) by notification dated 19th May, 2003, bearing no. F. 2 (3)/fin. (E-I)/2003- 04/ (i)/125, stamp duty on conveyance was reduced from 8% to 5% with immediate effect. By another notification dated 5th June, 2003, transfer duty was also reduced from 5% to 3%. Vide another notification dated 11th August, 2003, the earlier notification dated 19th May, 2003 was extended upto 31st March, 2004. Petitioners applied for refund of the stamp duty and transfer duty paid in excess amounting to rs. 67,810/- on 25th September, 2003.

( 3 ) BY the impugned order, refund of stamp duty has been refused on the ground that case was not covered under Section 49 of the Indian Stamps Act, 1899, (hereinafter referred to as the Act ). However, in the counter-affidavit filed, respondents have taken the plea that instrument had been submitted for adjudication under Section 31 of the Act and payment had been made on 18th March, 2003. The collector of Stamps exercised the power of adjudication of documents regarding levy of stamp duty as per the schedule of duty applicable on the date of adjudication and issued the certificate under Section 32 of the Act. In other words, what is sought to be urged is that stamp duty as leviable at the time of adjudication was charged and paid. Another plea taken is that petitioners got documents registered after due execution. Subsequently after utilization of the stamped instrument, refund is sought. The case would not be covered under Section 49 of the Act. Learned counsel for the respondents submitted that transfer duty, as collected, is already passed on to MCD, whom petitioner has not impleaded as a party. Therefore, respondents cannot be held responsible for refund of duty. As regards refund being made under Section 52 of the Act, learned counsel for the respondent submitted that this was not a case of inadvertence and Section 52 would not be attracted.

( 4 ) LEARNED counsel for the petitioners, Mr. R. K. Dhawan has urged that by virtue of Section 9, power is conferred on the appropriate Government to reduce or remit retrospectively the incidence of stamp duty. He submits that duty having been reduced pursuant to notifications issued, same was liable to be refunded. He places reliance on Section 52 of the Act providing for refund of stamp duty, where stamp of greater value than was necessary had been used on an instrument. The only limiting factor is that application should be made within six months after the date of instrument.

( 5 ) COUNSEL for the petitioner also places reliance on R. A. Baxter, Bar At law (36, C. 645; 9 C. L. J. 621) wherein even when an application for refund had not even been made at the initial sta

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