9911796707
TMI Blog1998 (1) TMI 216X X X X Extracts X X X X X X X X Extracts X X X X ..... ejected the appellants refund claim of excise duty on the ground that they had passed on the incidence of duty to their customers. The Assistant Commissioner accordingly, directed the crediting of the refund amount to the Consumer Welfare Fund established under Section 12C of the Central Excise Act. The refund claim related to the period from 1-6-1972 to 15-3-1976 for an amount of duty paid by the appellants under protest for a portion of the value representing equalised freight. Earlier, the Assistant Commissioner by his order dated 16-10-1979 had rejected their claim which was later upheld by the Collector (Appeals) by his Order on 1-12-1980. However, in appeal the Tribunal allowed the appeal by Order dated 6-6-1989. The Departmental authorities were also directed by the Tribunal to ensure expeditious steps to grant consequential refund to the party. According to the Appellants the Department did not sanction the refund in spite of repeated requests from them. Instead, the Assistant Commissioner directed the credit of the amount to the Consumer Welfare Fund applying the amended provisions of Section 11B relying on the judgment of the Apex Court in Union of India v. Jain Spinners ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Act, no claim for refund of any duty of excise shall be entertained. (5) Notwithstanding anything contained in any other law, the provisions of this section shall also apply to a claim for refund of any amount collected as duty of excise made on the ground that the goods in respect of which such amount was collected were not excisable or were entitled to exemption from duty and no Court shall have any jurisdiction in respect of such claim. Explanation. - For the purpose of this Section..... (B) `relevant date means - (f) in any other case, the date of payment of duty." 5. Ld. Sr. Counsel submitted that the Apex Court had in paragraph 87 of its judgment considered the question of retrospective operation of Section 11B. Explaining the provisions of sub-sections (2) and (3) of Section 11B before its amendment in 1991 and the first proviso to sub-section (1) after its amendment in 1991, the Apex Court had held that there was no doubt that sub-sections (1) and (2) of Section 11B would apply to pending proceedings. Ld. Sr. Counsel, however, drew attention to the further observations of the Hon ble Apex Court clarifying what was meant by pending proceedings . According to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cannot be deemed to be pending appeals. As the Department had not filed any appeal against the order of refund passed by the Tribunal on 6-6-1989 mere delay or refusal on the part of the administrative authorities in carrying out the order of the Tribunal cannot be construed to mean that the application for refund is still pending. Ld. Sr. Counsel maintained that the administrative authorities had no option but to give effect to the order by taking the necessary administrative steps for making the refund to the appellants. The question of eligibility for refund had already been decided by the Tribunal and the fact that the refund had not been granted will not make it a pending proceeding. He further submitted that the issue has been very clearly explained by the Hon ble Apex Court in paragraph 146 of the Mafatlal Industries Ltd. judgment, supra. He, therefore submitted that the Department had wrongfully delayed the payment of the refund amount in spite of the direction of the Tribunal by its order dated 6-6-1989. This cannot give the Deptt. a right to claim that the refund claim was still pending on the date of commencement of the 1991 amendment. He also submitted that Commissione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 991 amendment was made. He referred to the following judgments of the Apex Court in support of his contention : (1) State of Madhya Pradesh v. Vyankat Lal Others, AIR 1985 SC 901; (2) Kewal Krishan v. State of Punjab, AIR 1980 SC 1035; (3) M/s. Amar Nath Om Parkash and Others v. State of Punjab and Others, AIR 1985 SC 218; and (4) Himalaya House Co. Ltd. v. CCRA and Another, AIR 1972 SC 902. 7. We have considered the submissions and have perused the case law relied on by the parties. The admitted factual position in the case before us is that the present appellants had obtained an order allowing refund of Rs. 4,97,101.01 by Order No. 222/89, dated 6-6-1989 passed by the Tribunal. No appeal had been filed against the said order. The said order had thus become final. The Department had not implemented the order of the Tribunal when the amendment to the Central Excises and Salt Act was enacted with effect from 20-9-1991 which made it obligatory on the Department to credit all refund amounts to the Consumer Welfare Fund. The said amendment also applies to all pending cases of refund. Whereas the appellant s contention that the amended provisions did not apply to their case, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... funds already ordered by the Court or the refund ordered by the statutory authorities, which have become final. It follows from a plain reading of Section 11B, Clauses (1), (2) and (3) of the Act. The provisions contemplate the pendency of the application on the date of the coming into force of the Amendment Act or the filing of an application which is contemplated under law, to obtain a refund, after the Amendment Act comes into force. I am of the opinion, that if the said provisions are held applicable, even to matters concluded by the judgments or final orders of Courts, it amounts to stating that the decision of the Court shall not be binding and will result in reversing or nullifying the decision made in exercise of the judicial power. The legislature does not possess such power. The Court s decision must always bind parties unless the condition on which it is passed are so fundamentally altered that the decision could not have been given in the altered circumstances. It is not so herein. [Shri Prithvi Cotton Mills Ltd. Anr. v. Broach Borough Municipality Ors. [1970 (1) SCR 388] and Madan Mohan Pathak v. Union of India Ors. etc. [1978 (3) SCR 334]. See also Comorin Match ..... X X X X Extracts X X X X X X X X Extracts X X X X
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