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TMI Blog2000 (2) TMI 592X X X X Extracts X X X X X X X X Extracts X X X X ..... ribunal purporting to follow the Supreme Court decision in Mafatlal Industries case [1997 (89) E.L.T. 247 (S.C.)]. The Department s contention is that the view taken by the Tribunal in the Final Order that the assessee would be eligible for refund by virtue of its earlier order dt. 6-6-1989 was not correct. It is contended that for purposes of Section 11B, the proceedings have to be considered to be a pending proceeding. Reliance is placed on the Supreme Court decision in the case of UOI v. M/s. Jain Spinners Ltd. [1992 (61) E.L.T. 321 (S.C.)]. Ld. JDR submits that in the facts of the case before the Tribunal, the earlier order passed by the Tribunal on 6-6-1989 granting the consequential relief was a pending proceeding since as on 20-9-1991, the date of amendment of Section 11B, the refund payment was still not completed. Accordingly, such a pending claim for refund should have been disposed of only in terms of the provisions of Section 11B proviso as amended on 20-9-1991. According to the Department, disposal of the claim as per the law as it stood prior to 20-9-1991 would be tantamount to violation of the provisions of Section 11B(3) to the Central Excise Act, 1944. Further, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as been brought out by the applicant Commissioner. The applicant Commissioner has only raised the same questions which had been raised by him earlier and which had been considered and disposed of by the Tribunal by the Final Order under reference. He, therefore submitted that the Application filed by the Revenue may be rejected. 6. We have considered the submissions. We find that no specific mistake apparent on the face of the record has been brought out in the ROM Application filed by the Department. The question whether the administrative and procedural delay in giving effect to the Tribunal s Final Order dt. 6-6-1989 granting refund of the amount would be a pending proceeding for the purpose of Section 11B was considered and rejected by the Tribunal relying on Para 146 of the Apex Court judgment in the Mafatlal Industries case (supra). We therefore agree with the Counsel for the Respondents that no mistake apparent on the record requiring rectification of mistake under Section 35C of the Central Excise Act has been made out by the applicant Commissioner. 7. The ROM Application is, as a result, dismissed. Reference Application No. E/R/71 279/98-NB : 8. The Reference App ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctional Commissioner and the assessee, therefore, the Tribunal was also bound to follow the decision of the Madras High Court while deciding the aforesaid matter. 11. Ld. JDR also submitted that the Revenue had also moved an application for stay of operation of the Tribunal s Order dt. 27-1-98. He submitted that the law laid down in Para 99(ii) in the Apex Court judgment in Mafatlal Industries case endorsing the decision in Jain Spinners case was the correct law laid down by the Apex Court (being the view of the majority of five Hon ble Judges) and not Para 146 (the view of two other Hon ble Judges) which had been relied upon by the Tribunal. 12. Ld. JDR therefore pleads for acceptance of the Reference Application as well as for granting stay of the Final Order of the Tribunal dt. 27-1-98 pending decision of the Reference. 13. Ld. Counsel for the Respondents in the Reference Application submitted that no Reference Application under Section 35G(1) of the Central Excise Act, 1944 can arise from an order passed by the Tribunal following a decision of the Supreme Court. He submitted that Para 146 of the decision of the Supreme Court in Mafatlal Industries case which has been reli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at since the observations in Para 146 were in concurrence and in consonance with the views of the majority in Paras 86 and 99, there was no such error. 15. Ld. Counsel also submitted that inasmuch as the grounds urged in the ROM Application and the Reference Applications are similar and they were in the nature of an application for review of a Final Order passed by the Tribunal, the Reference Application may be rejected. 16. As regards the Stay Petition filed by the Revenue, ld. Counsel submitted that pursuant to the Tribunal s Final Order dt. 27-1-98, Jurisdictional Asstt. Commissioner has already sanctioned a refund of Rs. 4,97,101.01 to the assessee by Order dt. 12-5-98. The cheque has also been encashed. In view of the action taken by the Jurisdictional Asstt. Commissioner for part of the relief granted by the Tribunal in its Final Order dt. 27-1-98, there was no justification for not refunding the further amount of Rs. 2,63,69,322.00 which was also covered by the said Final Order of the Tribunal. 17. Ld. Counsel also stated that the assessee had filed an application under Rules 40 and 41 of the CEGAT Procedural Rules for initiating proceedings for contempt against the De ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for purpose of Section 11B(3) after amendment. Since no Appeal had been filed against the Final Order of the Tribunal dt. 6-6-89, the matter relating to refund of the amounts to the assessee had become final which required only administrative action for giving effect to the said order. It is quite apparent from the ratio of the Apex Court decision in Mafatlal Industries case, especially in the light of Paras 87, 99 and 146 thereof, that administrative delay in carrying out the Tribunal s Final Order will not convert such administrative delay into a pending proceeding. As had been clearly mentioned in Para 146, pending proceeding will relate only to proceedings before a competent judicial or quasi-judicial authority and not before an administrative authority. 21. In the light of the above discussion, we dismiss the Reference Application as well as the Stay Petition filed by the Revenue. 22. As regards the assessee s application under Rules 40 and 41 of the CEGAT Procedural Rules, we allow the same and direct the Jurisdictional Commissioner to implement forthwith the directions contained in this Tribunal s Final Order dt. 27-1-98 read with earlier order dt. 6-6-89. 23. The ROM ..... X X X X Extracts X X X X X X X X Extracts X X X X
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