9911796707
TMI Blog1998 (6) TMI 211X X X X Extracts X X X X X X X X Extracts X X X X ..... C(1) was made on 26-8-1998 whereunder it was stated that the Central Government directed that the whole of duty of excise payable under the Act on cut tobacco should not be required to be paid in respect of their commodities. The date of amendment of Section 11C was made on 1-7-1988. The notification issued under Section 11C was on 26-8-1988. The amount was refunded on 18-9-1990. Show cause notice was issued on 27-12-1990. In the impugned order the Collector has held that, following the judgment of the Tribunal in CCE, Chandigarh v. Mahavir Spinning Mills Ltd. - 1988 (33) E.L.T. 115, the amount claimed by the respondent should be refunded. The DR argues that the notification was issued on 21-8-1988. Therefore the respondent is not entitled ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nclusions which are undisputed from the facts. The impugned order was made in 1992. The Assistant Collector passed the order on 6-7-1990 allowing the refund claim. The respondent states that he has actually received the payment on 18-9-1990. Under the circumstances can we say that when the Parliament passed the Act in 1991, amending Section 11(b), can the doctrine of unjust enrichment revive especially when the refund has already been ordered and paid to the assessee ? 5. Shri Rohan Shah during the course of argument stated that there is no reference to the doctrine unjust enrichment in Section 11C. I have gone through sub-section (2) of Section 11C as amended in 1991. I cannot agree with him. In sub-section (2) of Section 11C it is speci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nds of appeal. I agree with him on that. But, however, I cannot agree with him on the point that unjust enrichment would never apply in respect of refunded claims. All refund claims have to undergo a test of doctrine of unjust enrichment. It is a salutory one as has been held by the Supreme Court in Mafatlal Industries Ltd. v. Union of India (supra). The argument of Shri Rohan Shah may be attractive at the first blush but has to be rejected because the cases of refunded cases has been taken note of by the Supreme Court in Anam Electrical Manufacturing Co. cited supra. Such cases have to be reopened and tested with doctrine of unjust enrichment. Moreover, if the argument of Shri Rohan Shah is to be accepted then the available right of appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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