1995 (5) TMI 150

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..... anction would amount to unjust enrichment. 2. Shri R.K. Sharma, Assistant Manager of the first appellant requested adjournment on the ground that issue of unjust enrichment is pending before the Larger Bench of the Supreme Court. The same plea was declared by Shri K.K. Anand, advocate, appearing for the second appellant. However, for reasons which will become apparent, I am of the view that the matter can be decided straightway. Therefore, after hearing the appellants advocate and Shri R.K. Sharma and after hearing Shri Y.R. Kilaniya, DR for the department, I proceed to decide the case. The amendment to Section 11B of the Central Excises and Salt Act provided for denial of refund to an assessee on the ground of unjust enrichment was made .....

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..... sfied, that refund should be sanctioned. According to him, as long as the Assistant Collector has `cogent grounds and records his reasons, he may reject the refund provided that the ground for rejection is not unreasonable. This argument is wholly unacceptable. The expression that the Collector has extracted from the section has to be read within the larger context of the Act. The satisfaction that the Assistant Collector is required to exercise would obviously be limited to ensure that duty which ought to have been paid had in fact been paid either by the mistake of law or mistake of facts and that such duty was actually been paid and the claim is in time. The Collector (Appeals) view if accepted would mean that it is entirely up to the .....

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..... L.T. 321 (SC) has held that amendments made to Section 11B of the Central Excises and Salt Act, 1944 incorporating the bar of unjust enrichment by amending Act of 1991, are retrospective in operation and applicable to all earlier orders and directions for refund given by any authority or court. The Hon ble Supreme Court in a subsequent decision in the I.T.C. s case - 1993 (67) E.L.T. 3 (S.C.) again held that the bar of unjust enrichment incorporated w.e.f. 20-9-1991 has retrospective operation and, therefore, applies to refund claims already decided but still pending in appeals etc. proceedings. It appears that the Hon ble Bench of the CEGAT has overlooked not only the aforesaid statutory provision but also the well known decisions o .....

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