9911796707
TMI Blog1992 (8) TMI 75X X X X Extracts X X X X X X X X Extracts X X X X ..... gate under Section 4(1)(a) of the Central Excises and Salt Act (hereinafter called the Act). Pursuant to the order, dated 19-11-1983 passed by the 3rd appellant, the first appellant by the order, dated 20-10-1984 approved the price-list under Section 4(1)(a) of the Act i.e., the price at which the goods are sold at the factory gate to the independent buyers. Further, an application for refund of Rs. 19,83,225.64 was also filed by the respondent before the first appellant. Thereafter, the second appellant filed an appeal against the order of the first appellant dated 20-10-1984 in Appeal No. 58 of 1986 before the 3rd appellant. By the order dated 12-5-1986, the third appellant set aside the order dated 20-10-1984 on the ground that the order dated 20-10-1984 is not in conformity with the order passed by the third appellant dated 19-11-1983. Aggrieved by the order dated 12-5-1986 the respondent filed an appeal before the Customs, Excise Gold (Control) Appellate Tribunal. The Customs, Excise Gold (Control) Appellate Tribunal by the order dated 20-3-1987 allowed the appeal and set aside the order of the third appellant dated 12-5-1986 on the ground that the department has not file ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd of Rs. 16,59,721.30. As a result the learned single Judge allowed the writ petition and directed the appellants to refund the said sum of Rs. 16,59,721.30 to the respondent with interest at 12% p.a. from 23-6-1987 within four weeks from 8-1-1991. This writ appeal is directed against the order of the learned single Judge. 5. Mr. K. Jayachandran, learned Additional Central Government Standing Counsel appearing for the appellants contended that by reason of Section 3 of the Central Excise Amendment Act, 1991 (Central Act 40 of 1991), Section 11B of the Act is so amended as to incorporate sub-section 3 to the effect that notwithstanding anything to the contrary, contained in any judgment, decree, order or direction of the Appellate Tribunal or any Court or in any other provision of the Act or the Rules made thereunder or any other law for the time being in force, no refund shall be made except as provided in sub-section 2 and therefore notwithstanding the order of the learned single Judge in W.P. No. 6260 of 1987 directing the refund to the respondent, no refund can be made to the respondent except as provided in sub-section 2 of the said Act. The learned counsel for the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds exported out of India or on excisable materials used in the manufacture of goods which are exported out of India; (b) unspent advance deposits lying in balance in the applicant's account current maintained with the Collector of Central Excise; (c) refund of credit of duty paid on excisable goods used as inputs in accordance with the rules made, or any notification issued, under this Act; (d) duty of excise paid by the manufacturer, if he had not passed on the incidence of such duty to any other person; (e) the duty of excise borne by the buyer, if he had not passed on the incidence of such duty to any other person; (f) the duty of excise borne by any other such class of applicants as the Central Government may, by notification in the Official Gazette, specify : Provided further that no notification under Clause (f) of the first proviso shall be issued unless in the opinion of the Central Government the incidence of duty has not been passed on by the persons concerned to any other person. (3) Notwithstanding anything to the contrary contained in any judgment, decree, order or direction of the Appellate Tribunal or any Court or in any other provision of this Act or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity. It is also provided that the Assistant Collector of Central Excise shall direct refund if such amount is relatable to duty of excise paid by the manufacturer, if he had not passed on the incidence of such duty to any other person. Further, by virtue of the said amendment any claim for refund has to be made by the assessee before the competent authority in the form prescribed by the Regulations and in the manner provided in the Rules. Again, the amended Section 11B(3) provides that notwithstanding anything to the contrary contained in any judgment or order or direction of the Appellate Tribunal or any Court, no refund shall be made except as provided in sub-section 2. 7. In the present case, when the respondent submitted an application before the first appellant claiming refund for the period from 1-4-1980 to 10-8-1983, the first appellant by his order dated 30-9-1986, rejected the same. As against the said order dated 30-9-1986, the respondent filed an appeal before the third appellant, who by the order dated 30-4-1987, set aside the order of the first appellant and remanded the matter to the first appellant to decide the refund claim, if admissible otherwise, as per Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... B(1)(2) of the Act as amended by the Amendment Act 40/91 and in compliance of the Rules and Regulations framed thereunder. A similar view has been taken by a Division Bench of the Karnataka High Court in The Assistant Collector of Central Excise, Davangere and Others v. M/s. Southern Asbestos Cement Ltd., Karur, Dharwad District. (W.A. No. 2369 of 1991 of Karnataka High Court, dated 20-1-1992), and in M/s. Brooke Bond India Ltd., Hyderabad v. Union of India Another (W.P. No. 1047 of 1987 dated 10-10-1991 of High Court of Andhra Pradesh) by a Division Bench of Andhra Pradesh High Court. 8. Dealing with a similar situation, the Division Bench of the Karnataka High Court in The Asstt. Collector of Central Excise, Davangere v. M/s. Southern Asbestos Cement Ltd., (W.A. 2369 of 1991 dated 20-1-1992) has held as follows : "Secondly, reliance is placed upon the amendment to the Act subsequent to the order under appeal to cover cases of what has come to be known as "unjust enrichment". By reason of the amendment to Section 11B, sub-section (3) thereof reads thus : "(3) Notwithstanding anything to the contrary contained in any judgment, decree, order or direction of the Appellate Tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... regulations framed thereunder. It is for the petitioner to comply with the provisions contained in the Act, Rules and the Regulations as amended primarily, so as to seek enforcement of his claim for refund. In view of the above it is not necessary for this court now to consider the relief which the petitioner seeks in this writ petition. The writ petition is disposed of without prejudice to the right of the petitioner to file an application in the prescribed form before the competent authority. No costs." 10. In view of the above position of law, the order of the learned single Judge directing the appellants to refund a sum of Rs. 16,59,721.30 to the respondent is liable to be set aside and accordingly it is set aside. However, the judgment in this writ appeal is without prejudice to the right of the respondent to file an application for refund afresh in the manner known to law and it is open to the respondent to seek refund of the amount concerned, afresh, from the Assistant Collector of Central Excise as provided under Section 11B(1)(2) of the Act as amended by Act 40/91. The respondent is directed to submit his application for refund before the competent authority within 8 w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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