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TMI Blog1991 (4) TMI 143X X X X Extracts X X X X X X X X Extracts X X X X ..... al filed by the Company that the goods were covered under the classification under Tariff sub-heading 4410.90 and thus the Company was entitled to the consequential relief. Annexure P. 2 is the copy of the order of the Tribunal. The Company preferred an application on April 18, 1990 for refund of the Excise Duty illegally collected. Two amounts were claimed by refund. Rs. 13,36,329.74 and Rs. 56,000/- which covered the period from February 6, 1987 to March 17, 1990. Exhibit P. 3 is the copy of the refund application. The Assistant Collector, ultimately ordered refund of Rs. 56,000/-, but no action was taken for refund of Rs. 13,36,329.74 as stated above. This led the Company to file Civil Writ Petition No. 10037 of 1990 in this Court for a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tment by Telex (copy Annexure R.I), withdrawing previous instructions on the subject and directing that refund claim should not be sanctioned to manufacturers and importers on the ground of unjust enrichment. 5. Learned Counsel for the petitioner has argued that present is a case of deliberate disobedience of the directions given by this Court in the writ petition aforesaid in not implementing the Award of the Tribunal. Reference has been made to Section 11 of the Act ibid. which imposes a duty on the Authorities to refund the duty illegally collected on acceptance of appeals etc. preferred against the orders imposing such duties. Reliance has been placed on some decisions of the Bombay High Court holding that the doctrine of unjust enric ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the amount was transferred by the factory to the purchasers and allowing such a refund to the factory would amount to unjust enrichment. It was held further that it was only on those persons on whom lay the ultimate burden to pay the amount, would be entitled to get a refund of the same. If it was not possible to identify such persons, the amount of the fund could be utilised by the Government for the purpose for which it was created. The aforesaid decisions are not helpful in deciding the present case. Each case of refund of tax or duty, illegally collected, has to be decided on the language of statute dealing with the subject. Furthermore, the Supreme Court and the High Court in the exercise of vast jurisdiction conferred under Articl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot be accepted. Roplas's case (supra) was considered subsequently by the Bombay High Court and was held to be not good law in view of Full Bench decision of the Bombay High Court in New India Industries Ltd. v. Union of India, 1990 (46) E.L.T. 23. Those decisions are: Collector of Central Excise v. Weldekar Laminates Pvt. Ltd., 1990 (47) E.L.T. 610; Roche Products Ltd. v. Union of India, 1991 (51) E.L.T. 238 (Bom.); Bombay Burmah Trading Corpn. Ltd. v. Union of India, 1991 (52) E.L.T. 195 (Bom.). In the Roche Products Ltd.'s case (supra) duty was paid under protest, the refund of which was claimed after the Revisional Authority had set aside the decision of the lower forum. It was held in Para 6 of the judgment that the duty recovered by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not be applicable to refund application under Sec. 11A of the Act, instructions to the contrary issued by the State Government could not have any precedence. If the intention of the State Government was to nullify the effect of the judicial pronouncements regarding interpretation of the statute, the same could only be achieved by amendment of the statute and not by issuing executive instructions. In the proceedings of the like nature it is not necessary to determine as to whether the amount of the duty illegally collected should or should not be refunded to the Company taking in view the doctrine of unjust enrichment? The question for consideration is short and simple as to whether the respondent has violated order passed by this Court in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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