TMI Blog2002 (10) TMI 721X X X X Extracts X X X X X X X X Extracts X X X X ..... . The Revenue has filed the appeal on the ground that the order-in-Appeal No. 375/97 (M), dt. 11-12-97, passed by the Commissioner (Appeals), Chennai, is not legally proper due to the following reasons which are extracted below : 1. The Order for refund of Rs. 31,35,208.82 Paise was originally passed by the erstwhile Assistant Collector of Central Excise (Now Assistant Commissioner), Madras VIII Division vide Assistant Commissioner s Order C. No. V/Ch. 40/1875/87 RF., Dated 11-08-89. Only part of the above refund and that too by way of credit to the tune of Rs. 12,34,326/- in the R.G. 23-A Part-II was refunded to the Assessee and the balance amount of Rs. 19,00,881.86 sanctioned towards refund payment by cheque has not been actual ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tral Excise as reported in 1996 (82) E.L.T. 198 (Madras) that till the actual disbursement of refund is made, the refund is to be treated as pending. 4. Hon ble Supreme Court in the case of Union of India v. Jain Spinners Limited - 1992 (61) E.L.T. 321, has held that Section 11-B of the Act after its amendment is retrospective and applies not only to all pending applications for refund of duty but also to all earlier orders and directions given by Court or by Appellate authority or Officer of the Department. 5. Further, it is also felt that the very purpose of enactment of Section 11-B Amendment Act, 1991 by the Government will be defeated if refund amount of Rs. 19,00,881.86 is paid to M/s. Madras Elastomers Limited, Ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere sanctioned in full settlement of their claims amounting to Rs. 33,83,786.67 out of which an amount of Rs. 12,34,826.98 was taken in RG 23A Part II and cheque for the balance amount of Rs. 19,00,881.86 was required to be issued by the Department. Ld. Counsel further submitted that the law laid down by the Hon ble Supreme Court in the case of U.O.I v. Jain Spinner Ltd., reported in 1992 (61) E.L.T. 321 (S.C.), is clearly distinguishable, as the facts in that case were different because there was no refund claim pending before the Assistant Collector. Ld. Advocate also submitted that the judgment rendered by the Hon ble High Court of Judicature at Madras in the case of M/s. Advani Oerlikon Ltd. v. Assistant Collector of Central Excise repo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... particular, Section 11B (2) and (3) as amended in 1991 cannot apply to: - 1. Refund made or due as per orders passed by Courts, in a suit or in a petition under Article 226 of the Constitution of India, which have become final. 2. Refunds ordered by the statutory authority concerned which have become final. It is obvious that in such cases no application can or will be deemed to be pending on the date of the commencement of the Amendment Act. No application praying for refund is to be filed in such cases, either. No further probe, regarding the requisites for obtaining refund specified in the Amendment Act, 1991, is called for in such cases. The above aspects are fairly clear. Section 11B (2) and (3) cannot be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd limitation etc. stated in Section 11B (2) read with Section 11B (3) will not apply to such cases. It need hardly be stated that Section 11B (1), the proviso thereto, Section 11B (2) and Section 11B (3) read together will apply only to (1) refund applications made before the Amendment of the Act and still pending on the date of commencement and Amendment Act, 1991 and (2) applications contemplated under law to obtain refund and filed after the commencement of the Amendment Act, 1991. The ld. Advocate also invited our attention to the matter of Dalmia Cements (Bharat) Ltd. v. CCE, Trichy reported in 2001 (137) E.L.T. 493 (Tri. Chenn.) in which also it has been held that doctrine of unjust enrichment is not applicable to matters which hav ..... X X X X Extracts X X X X X X X X Extracts X X X X
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