9911796707
TMI Blog2002 (10) TMI 721X X X X Extracts X X X X X X X X Extracts X X X X ..... . 2. 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 towa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nbsp; Hon'ble Madras High Court has held in the case of M/s. Advani Oerlikon Limited v. Assistant Collector of Central 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ,83,796.67/- was passed by the Assistant Collector of Central Excise, Madras VIII Division and Order was communicated to them vide his order C. No. V/Ch.40/1875/87 R.F., dated 11-08-89, that these refund claims were 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 11B (2) of the Act. The section contemplates disposal of the applications pending on the date of the Amendment Act as also fresh applications filed after the Amendment Act, 1991, as per the amended provisions. Counsel for the assessees urged that the provisions relating to refund and, in 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . [1970 (1) SCR 388] and Madan Mohan Pathak v. Union of India & Ors. etc. [1978 (3) SCR 334]. See also Comorin Match Industries (P) Ltd. v. State of Tamil Nadu [1996 (65) ECR 233 (SC) = Jt.1996 (5) SC 167]. Alternatively, it may be stated that duty paid in cases, which finally ended in orders or decrees or judgments of courts, much 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. 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 Amendm ..... X X X X Extracts X X X X X X X X Extracts X X X X
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