The judgment emphasizes the principle that a person cannot claim refund under Section 24-B if the burden of the duty has been passed on to a third party, and equitable considerations are relevant in such claims.

The petitioner is seeking direc­tion to the respondents for payment of Rs. 26, 64, 762/- along with interest calculated in terms of section 24-B of the Jammu and Kashmir Excise Act, SVT. 1958 (for short Act of 1958), which were recovered from him as staff charges.

2. Respondents have filed reply affi­davit/ objections.

3. Learned Senior counsel for the petitioner submitted that on the strength of Rule 17 of Jammu and Kashmir Distillery Rules 1946 (for short rules of 1946), the petitioner was made to pay the amount on account of staff charges by the respondents. Learned counsel further submitted that Show Cause Notice issued by the re­spondents was challenged by the peti­tioner along with some other persons in OWP 246/1999, which petition was dismissed by the writ Court vide order and judgment dated 16-02-1999 and LPA 150/1999 filed against the said judgment also was dismissed by the LPA bench vide its order dated 14-12-2000. Learned counsel further submit­ted that after dismissal of the LPA, the petitioner paid the amount on account of staff charges, for which notice was issued. Learned counsel further sub­mitted that some other persons to whom similar notices were issued af­ter their challenge to notices issued by the respondents failed before this Court, they filed SLP before the Hon'ble Supreme Court which was allowed and rule 17 of the Rules of 1946, was held to be lacking statutory backing and was further held to be in excess of the Act of 1958; manifestly unjust and arbi­trary and that the said provision was clearly a tax and not a fee. Learned counsel submitted that the Hon'ble Supreme Court directed for refund of the amount paid by the appellants therein. Learned counsel further sub­mitted that the judgment was handed down by the Hon'ble Supreme Court on 19.04.2007 and thereafter cause ac­crued to the petitioner for filing of this petition for seeking refund/payment of the amount already charged and real­ized from him, which was filed within the period of limitation for institution of Suits. Learned Senior counsel sub­mitted that rule 17 of the Rules of 1946, having been held to be illegal, the right of the petitioner to seek a direction for payment of amount already recovered from him is lawful and just in the facts and circumstances of this case. Learned counsel, in support of his con­tention, referred to the judgment of the Hon'ble Supreme Court in Case No. Appeal (Civil) 2700-2701 of 2000 titled M/s. Gupta Modern Breweries vs. State of J&K and others. Learned counsel, in his fairness, also referred to the judg­ments of the Hon'ble Supreme Court which, in his wisdom, are not favouring him and also to the judgment which are favouring the claim of the petitioner. He, in this behalf referred to the judg­ments of the Hon'ble Supreme Court in cases 1986(4)SCC titled State of Madhya Pradesh Vs. Nandlal, 1989(2) SCC 356 titled Rup Diamonds Vs. Union of India, 1986 SCC(4) 566 titled State of Madhya Pradesh Vs. Nandlal Jaiswal, 1974 (1)SCC 317, titled Ram Chandre Shankar Devdhar Vs. State of Maharashtra, 1984 (2) SCC 337 titled H. D. Vooru Vs. State of Maharashtra, 1988 (1) SCC 401, titled Salonah Tea Company Vs. Superintendent of Taxes, 1989 (2) SCC 356 titled Rup Diamonds Vs. Union of India, 1989 (1) SCC 546, titled P. L. Shah Vs. Union of India, and 1964 SC 1006, titled State of Madhya Pradesh Vs. Bhai Lal. Learned coun­sel also referred to section 24-B of the Act of 1958 and submitted that the pe­titioner is entitled to seek payment of money which has been recovered from him wrongly.

4. Learned counsel for the respon­dents submitted that the petitioner is precluded from seeking the relief sought for in this writ petition for the reason that in the year 1991, he had filed a writ petition seeking almost same reliefs. Learned counsel referred to the reply affidavit filed by the respon­dents and submitted that in reply to paragraphs 4 to 9 of the writ petition, the respondents have reproduced the reliefs sought for in t