2010 (11) TMI 233

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..... sidering the bar of unjust enrichment - All pending matters shall, however, be governed by the law declared herein notwithstanding that the tax or duty has been refunded pending those proceedings, whether under the orders of any authority, Tribunal or Court or otherwise - Decided against the assessee
MR. JUSTICE ADARSH KUMAR GOEL, MR. JUSTICE RAKESH KUMAR JAIN, JJ. Mr. H.P.S. Ghuman, Sr. Standing Counsel for the applicant. ADARSH KUMAR GOEL, J. 1. Following questions of law were treated to have been referred for opinion of this Court under Section 35H of the Central Excise Act, 1944 (for short, "the Act") vide order of this Court dated 29.7.2010 arising out of order of the Customs, Excise and Gold Control Appellate Tribunal, New Del .....

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..... refund, which is otherwise eligible, should be granted with interest as per Section 11BB. 7. In view of my findings, the orders are set aside as regards unjust enrichment clause and appeals allowed with consequential relief." 3. We have heard learned counsel for the revenue. 4. Learned counsel for the revenue submits that amendment by way of Sections 11B and 12B introduced on 20.9.1991 applied to pending applications. Refund had not been made though order had been passed by this Court. Bar of unjust enrichment could certainly apply. The finding of the Tribunal is in direct conflict with the law laid down by the Hon'ble Supreme Court in Mafatlal Industries Ltd. v. Union of India 1997(5) SCC 536, which has not been properly appreciated. .....

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..... duty has been refunded pending those proceedings, whether under the orders of any authority, Tribunal or Court or otherwise. xx xx xx xx xx (xi) Section II-B applies to all pending proceedings notwithstanding the fact that the duty may have been refunded to the petitioner/plaintiff pending the proceedings or under the orders of the Court/Tribunal/ Authority or otherwise. It must be held that Union of India v. Jain Spinners ((1992) 4 SCC 389 and Union of India v. ITC (1993 Supp (4) SCC 326 have been correctly decided. It is, of course, obvious that where the refund proceedings have finally terminated - in the sense that the appeal period has also expired - before the commencement of the 1991 (Amendment) Act (19-9-1991), they cannot be re .....

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