TMI Blog2009 (8) TMI 542X X X X Extracts X X X X X X X X Extracts X X X X ..... original adjudicating authority in view of the fact that Commissioner (Appeals) in his order did not consider whether the appellants have passed on the duty liability to their customers or not and whether the grant of refund would amount to unjust enrichment - E/3096/2004 - 755/2009-EX(PB), - Dated:- 20-8-2009 - Justice R.M.S. Khandeparkar, President and Shri B.S.V. Murthy, Member (T) Shri Rupesh Kumar, Advocate, for the Appellant. Shri A. Khanna, DR, for the Respondent. [Order per: B.S.V. Murthy, Member (T) (Oral)]. - The respondent was engaged in the processing of man made fabrics and after the introduction of Hot Air Stenter Textile Processors Annual Capacity Determination Rules, 1998 with effect from 10-12-1998, annual ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the appellant had filed fresh declaration and have claimed redetermination on the basis of amendment in the Rules and the decision of the Tribunal in the case of Chiman Lal Silk Mills (I) (P) v. CCE reported in 2000 (120) E.L.T. 766 (Tribunal) was also not taken into account. 2. We have heard both sides. 3. The learned DR on behalf of the Revenue submits that the assessee had not filed the appeal against the order of the Commissioner (Appeals) determining the APC on 29-3-99 and this was appealable order. Therefore, in terms of the decision of the Hon'ble Supreme Court in CCE, Kanpur v. Flock India Pvt. Ltd. [2000 (120) E.L.T. 285] the decision of the Tribunal allowing the appeal earlier is correct. He also submits that the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... support of his claim. Therefore, it is their submission that once they had paid duty under protest and had replied to the show cause notice contesting fixation of APC itself, APC should have been redetermined. He also submits that relying upon the, decision of the Hon'ble Bombay High Court in the case of Om Textile Pvt. Ltd. v. CCE reported in 2006 (74) RLT 233 in support of his contention that based on the Supreme Court decision refund should have been granted to them. He also submits that their case is similar to the case of Om Textile Pvt. Ltd. 5. The learned DR in his rejoinder submits that the case of Om Textile Pvt. Ltd. was considered by the Tribunal while passing the order and therefore the same is not applicable to the facts of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se such issue before the appropriate forum for adjudication. The presumption against retrospective operation is not applicable to declaratory statutes. A substantive right as accrued by the appellant is clarificatory in nature. Curative statutes are by their very nature are intended to operate upon and affect past transactions and are therefore, fully retrospective. Curative and validating statutes operate on conditions already existing and can have no prospective operation. It is well settled that if a statute is curative or merely declares the previous law, retroactive operation would be more rightly ascribed to it than the legislation which may prejudicially affect past rights and transactions. 9. In their decision, Om Textile Pvt. Ltd ..... X X X X Extracts X X X X X X X X Extracts X X X X
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