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TMI Blog2001 (11) TMI 78X X X X Extracts X X X X X X X X Extracts X X X X ..... h for sake of convenience it was called as unconstitutional levy in Mafatlal Industries case [ 1996 (12) TMI 50 - SUPREME COURT OF INDIA ]. Secondly, assuming it to be a case of unconstitutional levy still the appellant would not be entitled to refund in terms of law settled by the Mafatlal Industries, case. Even in that eventuality it has to be established that incidence of duty has not been passed on to others. It has been held that whether the claim for restitution is treated as a constitutional imperative or as a statutory requirement, it is neither an absolute right nor an unconditional obligation but is subject to the requirement that the burden of duty has not been passed on to others. It was not submitted before us that this require ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellant filed a refund claim dated March 14, 1991 under Section 11B of the Act seeking refund of Rs. 5,41,498.67 being the amount of duty paid under protest during the period from April 1, 1983 to October 20, 1986. While the application claiming refund was pending, Section 11B was substantially amended with effect from September 20, 1991. By the same amendment, certain other provisions were also inserted in the Act including Sections 12B and 12C. Section 12B provided for presumption that the incidence of duty has been passed on to the buyer. Section 12C provided for the establishment of consumer welfare fund. It is not in dispute that these provisions were applicable to the pending applications of refund. Under Section 11B as amended, refu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the excise duty was totally without the authority of law and without jurisdiction. Such a claim of refund, it was contended, can be entertained as held in Mafatlal Industries case in paragraph 108(ii) in the following words : "Where, however, a refund is claimed on the ground that the provision of the Act under which it was levied is or has been held to be unconstitutional, such a claim, being a claim outside the purview of the enactment, can be made either by way of a suit or by way of a writ petition." 6.For more than one reason we find it difficult to accept the contention. Firstly the present is not a case of an unconstitutional levy as contemplated by the nine judges' bench decision. That is where a provision of the Act under which t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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