TMI Blog1997 (8) TMI 83X X X X Extracts X X X X X X X X Extracts X X X X ..... ectrodes Sections. Punched `C' Section. Shutter Lath Section and Fork Blades for cycles. and the item shutter lath was manufactured out of cold rolled strips. When Tariff Item 68 was introduced in the year 1975, the respondent were said to have been advised to pay duty under Tariff Item 68 in respect of item shutter lath which was paid by them under protest. Thereupon, the Assistant Collector, Madras-III Division issued an order dated 17-7-1976 classifying the said item under Tariff Item 68. Aggrieved, the assessee filed an appeal before the Appellate Collector, who by his order dated 23-12-1977 set aside the order of the Assistant Collector with a direction to readjudicate the case and passed a speaking and reasoned order to meet the ends of justice. Thereupon, the Assistant Collector, Madras-III Division, after issuing a show cause notice and considering the representation of the assessee, passed an order dated 23-2-1979 taking the view that the item in question was classified under Tariff Item 68 of the Central Excise Tariff. Once again, the matter has been pursued by the assessee on appeal to the Appellate Collector who by his order dated 16-1-1980 came to the conclusio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ade by a special identifiable name and therefore, they should rightly be classified under Tariff Item 68 and not under Tariff Item 26AA(ia). Thereupon, as a consequence, the Collector proposed to set aside the order of the Assistant Collector dated 29-12-1980 in sanctioning the refund as irregular and ordered that an amount of Rs. 12,78,921.699 said to be the incorrect refund granted to the respondent should be recovered under Section 11A of the Central Excises and Salt Act, 1944. 5.Aggrieved, the respondent has filed the above writ petition seeking for the relief already noticed supra. The assessee both in their affidavit filed in support of the writ petition as also at the time of hearing of the writ petition before the learned single Judge urged that the order of the Collector does not seem to set aside the earlier orders of the Assistant Collector, Central Excise dated 29-4-1980 according classification of the goods in question under Item 26AA(ia), that the refund was merely a consequential action which inevitably followed such classification and cannot be considered to be any independent decision or order and so long as the order of the Assistant Collector dated 29-4-1980 wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lector of Central Excise had rendered a finding that the Tariff Item applicable is 68 and not 26AA(ia). This reasoning of the Collector of Central Excise in the impugned orders dated 6-2-1982 is wholly unsustainable and his conclusion that Tariff Item 26AA(ia) is not applicable is contrary to the very admission in the counter affidavit filed in this case and consequently, that portion of the order of the Collector of Central Excise holding that the Tariff Item applicable to the shutter lath sections manufactured by the petitioner would be 68 is incorrect and consequently, that portion of the order is set aside". Of course, in dealing with the other contentions, relating to Section 11A and 11B, learned single Judge was of the view that by virtue of the statutory entitlement under Section 11B of the Act, the assessee had an indefeasible right to refund, and thereby ultimately allowed the writ petition. Hence the above writ appeal by the Department. 6.Much developments has taken place subsequent to the filing of the writ appeal due to certain declaration of law by Courts in the teeth of claims for refund under the provisions contained in the Act and the relevant scope and applicab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d not for abrogating it. Even while acting in exercise of the said constitutional power, the High Court cannot ignore the law nor can it over ride it. The power under Article 226 is conceived to serve the ends of law and not to transgress them. Section 11B applies to all pending proceedings(xi) 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 (61) E.L.T. 321 (S.C.) = 1992 (4) SCC 389] and Union of India v. I.T.C. [1993 (67) E.L.T. 3 (S.C.) = 1993 Suppl. (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 (September 19, 1991), they cannot be re-opened and/or governed by Section 11B(3) [as amended by the 1991 (Amendment) Act]. This, however, does not mean that the power of the Appellate Authorities to condone delay in appropriate cases is affected in any manner by this clarification made by us. Section 11B does pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the authorities for consideration afresh of the eligibility or otherwise of the assessee for refund under the amended provisions. It was also contended for the appellants - Department that the learned single Judge was in error in holding that the second appellant had not reviewed the order of the Assistant Collector dated 29-4-1980 and that if a particular portion of the order alone is quashed, it would lead to, and result in "unjust enrichment", which is not permissible in law. Argued the learned Counsel for the appellant further that the impugned order of the second appellant - Collector constitutes valid exercise of revisional power under Section 35A of the Act and the order under revision made by the Assistant Collector was, therefore, rightly set aside by the revisional authority and consequently, the order of the learned single Judge has to be set aside. 8.Per contra, Mr. Habibullah Badsha, learned Senior Counsel for the respondent - assessee while placing reliance upon the law declared by the Apex Court in Mafatlal Industries case [1997 (89) E.L.T. 247 (S.C.)] (supra), particularly paragraph 99(x), contended that inasmuch as the revision proceedings have finally got ter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... directions : in cases where writ petitioners, writ appeals (by whatever appellation they are called) or suits (at whatever stage they may be, as on today) are pending as on today, and provided they have not already taken proceedings for refund under the Act, it shall be open to the petitioners/appellants/plaintiffs to file applications for refund under Section 11B within sixty days from today. If the applications are so filed by them, they shall not be rejected on the ground of limitation and shall be dealt with according to law. We make it clear that this direction applies only to petitioners/appellants/plaintiffs in pending writ petitions/writ appeals/suits (pending as on today), as explained hereinabove, and not to any others. The applications so filed under Section 11B shall be disposed of under Section 11B, as interpreted herein, and in accordance with law. It is obvious that if any of such petitioners/appellants/plaintiffs have already taken proceedings for refund under the Act and having failed therein - either partly or wholly - have resorted to writ petition or suit, they shall not be entitled to the benefit of this direction". 11.Section 11A of the main Act provided for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f an application which is contemplated under law, to obtain a refund, after the Amendment Act comes into force. If the said provisions are held applicable, even to matters concluded by the judgments or final orders of Courts, it amounts to stating that the decision of the Court shall not be binding and will result in reversing or nullifying the decision made in exercise of the judicial power. The legislature does not possess such power. Alternatively, it may be stated that duty paid in cases, which finally ended in orders or decrees or judgments of Courts, must be deemed to have been paid under protest and the procedure and limitation etc., stated in Section 11B(2) read with Section 11B(3) will not apply to such cases". 12.Consequently, the claim of the learned Counsel for the appellant/Revenue, that Section 11B of the Act as per amendment Act 40/1991 would apply to the case on hand requires to be considered in the light of the said declaration of law made by the Apex Court. The order of the Assistant Collector dated 29-4-1980 came to be passed pursuant to the order of remand passed by the Appellate Collector of Central Excise dated 16-1-1980, and the Assistant Collector after lo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and taken before the learned single Judge in the counter filed, admitting the classification made by the Assistant Collector under Tariff Item 26AA(ia) and accepting the same. It is only in this connection, the findings and conclusions recorded by the learned single Judge in paragraph 8 of the order, noticed supra, wherein it has been held that the bar of limitation has set in, becomes relevant. We are in entire agreement with the view expressed and the conclusions arrived at by the learned single Judge in paragraph 8 of his Order and the learned Counsel for the appellants could not successfully demonstrate any infirmity whatsoever in the same or persuade us to take a different view, for any valid or justifying reasons. 13.Therefore, we are of the view that, the stand taken for the appellants - Revenue that by virtue of Section 11B(3), the Amended provisions of Section 11B would be attracted, has no force or merit of acceptance, for the reason that the refund has been actually effected long before the amendment Act came into force by issuing the cheque on 29-12-1980 and the right of the Department became foreclosed and rights of parties already became finally settled and nothing ..... X X X X Extracts X X X X X X X X Extracts X X X X
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