9911796707
TMI Blog2001 (1) TMI 704X X X X Extracts X X X X X X X X Extracts X X X X ..... r contend that in so far as the claims of refund after the amendment to Section 11B of the Central Excise Act introducing the provisions of unjust enrichment is concerned, such claims are clearly not enforceable and they do not press the same in view of the law having been clearly laid down by the Apex Court in the case of Mafatlal Industries Ltd. [1997 (89) E.L.T. 247 (S.C.)]. Those claims are for the period 1-4-1989 to 30-6-1989 and 1-7-1989 to 30-9-1989 which arises from Order-in-Original No. 5/90, dated 15-2-1990 which was re-adjudicated again after the conclusion of the proceedings again by the Assistant Commissioner passed second Order-in-Original No. 1543/94, dated 30-6-1994 in respect of both the periods and a common Order-in-Appeal No. 80-85/95 (Try), dated 30-6-1995. The appeal numbers arising from these two claims and relevant particulars are as follows :- Appeal No. E/511/96 Appeal No. E/512/96 (i) Period of claim : 1-4-1989 to 30-6-1989 Period of claim : 1-7-1989 to 30-9-1989 (ii) Amount involved : Rs. 4,07,832.12/- Amount involved Rs. : 3,11,422,92/- (iii) Date of refund claim : 24-4-1989 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -1995 E/507/96 72/81 (Md.) 9-5-1982 130-132/ 90-A 14-2-1990 V/23/18/2/81-Refund 24-6-1994 175/94 3-8-1994 80-85 (TRY) 30-6-1995 E/508/96 176/82 (Md.) 13-9-1982 130-132/ 90-A 14-2-1990 V/23/18/3/81-Refund 24-6-1994 176/94 3-8-1994 80-85 (TRY) 30-6-1995 E/509/96 28/91 11-4-1991 ..... V/Ch.25/18/4/89-Refund 24-6-1994 179/94 3-8-1994 80-85 (TRY) 30-6-1995 E/510/96 4. There is no dispute in the above matters about the Revenue not having agitated the issue before the Apex Court after the culmination of proceedings by passing of the orders by the Tribunal on merits and also holding that they are entitled for the refund in the matter in the respective orders of the Tribunal. As a consequence, the appellants were entitled to receive the cheques in due compliance of the Tribunal s order. However, the Department s understanding was that as in the meantime, the Section 11B had been amended in respect of unjust enrichment, therefore, show cause notices were issued on that plea. The appellants contention was that in respect of all those proce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Dalmia Cements referred to by Sr. Counsel is pending before the Supreme Court. He further submits that as refund has not been granted to them till the passing of the amended provisions of Section 11B of the Central Excise Act, therefore, it has to be presumed that their case also was deemed to be pending and not having reached finality, although the Revenue had not filed any appeal against the CEGAT s order. 7. On a careful consideration of the submissions made by both the sides, we are of the considered opinion that the issue is no longer res integra. The Apex Court in Mafatlal Industries case has clearly clarified and laid down that the doctrine of unjust enrichment would not apply to matters which have reached finality and in those cases the Department is bound to make the refund. We have gone through the entire paragraphs of this aspect and the Tribunal has in the appellant s own case extracted para 146 and rejected the Revenue s contention and has directed the Revenue to refund the amounts as the issue had reached finality. The findings recorded in para 7 in the appellant s own case reported in 1998 (101) E.L.T. 669 is extracted below :- 7. We have considered the subm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to refund and, in particular, Sections 11B(2) and (3) as amended in 1991 cannot apply to :- 1. Refund made or due as per orders passed by Courts, in a suit or in a petition under Article 226 of the Constitution of India, which have become final. 2. Refunds ordered by the statutory authority concerned which have become final. It is obvious that in such cases no application can or will be deemed to be pending on the date of the commencement of the Amendment Act. No application praying for refund is to be filed in such cases, either. No further probe, regarding the requisites for obtaining refund specified in the Amendment Act, 1991, is called for in such cases. The above aspects are fairly clear. Sections 11B(2) and (3) cannot be made applicable to refunds 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 in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r refund by the Courts. In fact, in the case of Dalmia Cement (Bharat) Ltd., it was the Tribunal which had passed such an order, whereas in the instant case the order emanates from the Hon ble Supreme Court. We further find on a perusal of the said order that it clearly shows that the Hon ble Supreme Court held that the present appellants were entitled to refund of the full amount along with interest at the rate of six per cent per annum for the period for which the refund was not given. This language in the Hon ble Apex Court s order clearly shows that the Hon ble Court required that the actual amount should be paid back to the appellants along with interest as indicated therein. We further find that the question of applicability of amended Section of 11B particularly sub-sections (2) and (3) thereof to refund was already considered at length by the Hon ble Supreme Court in the case of Mafatlal Industries cited supra, wherein it had been clearly held that when there was an order emanating from a court on a refund claim and this order was passed prior to the coming into effect of the amended Section 11B, then the said law would not be applicable to this order of refund, as the refu ..... 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