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TMI Blog2004 (4) TMI 82X X X X Extracts X X X X X X X X Extracts X X X X ..... majority view expressed by the Apex Court and following the subject paragraph quoted supra we are of the view that the claim of the writ petitioner cannot be allowed. It is true that the subject issue was never raised, either before the learned Single Judge or in the grounds of appeal. However, after the Constitutional Bench judgment we cannot ignore the law laid down by the Apex Court and we permitted the Revenue to take the plea of unjust enrichment. Although we are in total agreement with the learned Single Judge on the other score we disallow the claim of the writ petitioner on the ground of unjust enrichment following the decision of the Apex Court in the case of Mafat-lal Industries Ltd.[ 1996 (12) TMI 50 - SUPREME COURT] ). Hence, the appeal is allowed - The order of the learned Single Judge is set aside. - Ashok Kumar Mathur, C.J. and Ashim Kumar Banerjee, J. [Judgment per : Ashim Kumar Banerjee, J.]. - The respondent is a shoe manufacturing company. For the purpose of manufacturing of shoes cotton fabrics are required. 2.Prior to August 1, 1960 excise duty was not leviable on the said duty paid cotton fabrics. 3.By a notification dated August 1, 1960 issued by the Deput ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der Rule 11. His Lordship ultimately directed refund of the duty which was disallowed by the Revenue. 10.Being aggrieved and dissatisfied with the said judgment and order dated July 23, 1979 the present appeal was filed by the Revenue. 11.Mr. Shyamal Sarkar, learned Counsel appearing for the appellant urged two points — (i) the claim was hopelessly barred by limitation, and (ii) the claim was hit by the doctrine of unjust enrichment. 12.In support of his contention Mr. Sarkar relied upon 1997, Volume 89, Excise Law Times, Page 247 (Mafatlal Industries Ltd. v. Union of India). According to Mr. Shyamal Sarkar even as per the old Rule 11 prevalent at the relevant point of time refund application was to be made within the certain period and neither the authority nor the court can condone such period. On the issue of unjust enrichment Mr. Sarkar contended that since the amount of tax already paid by the respondent had been collected from various consumers refund of the same would amount to unjust enrichment by the respondent-company and as such the same should not be allowed. 13.Mr. J.P. Khaitan, learned Counsel appearing for the respondent-company, contended that the letter dated Septe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issued a circular that on and from a particular date particular process would not amount to manufacture within the meaning of Section 2(f) of the Central Excises and Salt Act, 1944. The Apex Court held that there was no foundation for fixing a particular cut of date as the commencement of the period from which the process would not amount to manufacture. The Apex Court found that there had been no change in law in between and as such fixation of such cut of date was erroneous. 17.In the instant case the Central Board of Revenue by their letter dated September 26, 1963 clarified the position. The Central Board of Revenue was not empowered to levy tariff on a particular item or to exclude particular item from payment of duty. This is within the domain of the legislature. The Central Board of Revenue on interpretation of law prevalent on that date made a clarification to the effect that the particular product was not covered under any excisable tariff. Hence, following the decision of the Apex Court in the case of Lathia Industries (supra) we hold that fixation of cut off date in the instant case by the Revenue was totally under misconception of law and the basis on which the claim pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would not be applicable in the instant case. 20.The instant case has a significant feature. Before the Revenue authority the period of limitation was not gone into and was not considered. The concerned authority rejected part of the claim which arose prior to September 26, 1963 on a misconceived impression that while considering the refund application the date of the board's clarification should be the cut off date. Hence, the authority also accepted the fact that the period of limitation had no application in the instant case. Hence, the argument that the claim was barred by laws of limitation was nothing but an afterthought and was based on misconception of law. 21.This leaves us with the question of unjust enrichment. This issue was neither raised before the learned Single Judge nor in the grounds of appeal filed by the Revenue before us. The argument was advanced by Mr. Sarkar being prompted by the Constitutional Bench judgment in the case of Mafatlal Industries Limited (supra). It is true that this particular product was used in manufacture of the products and as such can be termed as intermediatory manufacture. Hence, there could not have been any direct collection of the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot collect the duty from his purchaser at one end and also collect the same duty from the State on the ground that it has been collected from him contrary to law. The power of the court is not meant to be exercised for unjustly enriching a person. The doctrine of unjust enrichment is, however, inapplicable to the State. State represents the people of the country. No one can speak of the people being unjustly enriched." 23.We have also carefully gone through the minority view and the logic behind such view was nicely explained by Suhas Chandra Sen J. (as His Lordship then was). However, we are bound to follow the majority view expressed by the Apex Court and following the subject paragraph quoted supra we are of the view that the claim of the writ petitioner cannot be allowed. It is true that the subject issue was never raised, either before the learned Single Judge or in the grounds of appeal. However, after the Constitutional Bench judgment we cannot ignore the law laid down by the Apex Court and we permitted the Revenue to take the plea of unjust enrichment. 24.Although we are in total agreement with the learned Single Judge on the other score we disallow the claim of the writ pe ..... 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