Subscription   Feedback   New User   Login      
Tax Management India .com
TMI - Tax Management India. Com
Articles Highlights TMI Notes SMS News Newsletters Calendar Imp. Links Database Experts Contact us More....
Extracts
Home List
← Previous Next →

Commissioner of Central Excise, Tiruchirapalli Versus M/s. Dalmia Cement (Bharat) Ltd.

2015 (9) TMI 727 - SUPREME COURT

Scope of Section 11B - Refund claim - Whether Section 11B of the Central Excise Act, as amended, applies to cases where though an order has been passed directing refund, implementation of the order is pending - Held that:- applications for refund of excise which were preferred by the assessee had already been allowed finally by the orders of CEGAT dated 01.06.1989 and 06.06.1989. This obviously happened before the amendment in the Section in the year 1991. At the same time, the refund had not be .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

isentitle the manufacturer/payer from claiming any refund contrary to the said proviso. However, in those cases where the refund proceedings had finally been terminated, in the sense – that the appeal period has also expired – before the commencement of the amended provision, these cannot be re-opened and/or governed by the amended provision.

Only after amendment in Section 11B of the Act in the year 1991, any person applying for refund has to establish that incidence of such duty ha .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

aimant as a result of adjudication of the dispute or otherwise. It is only in the amended provision that additional stipulation is provided as per which the claimant is required to file, along with application for refund, such documentary or other evidence including documents referred to any Section 12A of the Act to establish that the amount of duty of excise was collected from the claimant or paid by the claimant and that “incidence of such duty had not been passed on by him to any other perso .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

doubt, the Court observed that the Assistant Commissioner would go into the question if the respondent should be granted the refund in spite of Section 11B of the Act. However, merely because of such observations, it cannot be said that the Assistant Commissioner was entitled to look into the issue of unjust enrichment when if, otherwise, he he was otherwise had no jurisdiction to do so in the facts of the present case.

Thus, when the order of the Assistant Commissioner was challeng .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

Adv. Mr. B. Krishna Prasad, Adv. For the Respondent : Mr. K. V. Viswanathan, Sr. Adv. Mr. Ramesh Singh, Adv. Mr. Sabyasachi Patra, Adv. Mr. Abhishek Kaushik, Adv. Mr. Sanjeev K. Kapoor, Adv. Mr. Ashwini Chawla, Adv. M/s. Khaitan & Co. JUDGMENT A. K. Sikri, J. On an application under Section 35G(3) of the Central Excise Act, 1944 (hereinafter referred to as the 'Act'), the Customs Excise and Gold (Control) Appellate Tribunal (hereinafter referred to as the 'CEGAT') referred th .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

shall not apply. In other words, the principle of 'unjust enrichment' which was introduced by way of amendment of Section 11B in the year 1991 shall not be attracted in the instant case as the proceedings under the unamended Section stood finalised with the direction in the application filed under unamended Section 11B of the Act to refund the excise duty that was paid by the respondent/assessee. To put it pithily, the High Court has held that merely because implementation of the afores .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

richment on the part of the assessee or not. In coming to this conclusion, the High Court has extensively referred to a 9-Judge Bench of this Court in the case of Mafatlal Industries Ltd. and Others v. Union of India and Others (1997) 5 SCC 536. 3) It is not disputed before us that the law laid down in the aforesaid judgment would be applicable. However, the appellant contends that there is a small window left open in the said judgment which would cover the situation that has arisen in the prese .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

make an application for such a refund to the Assistant Collector of Central Excise before the expiry of six months from the refund date and the procedure how such application is to be dealt with was stipulated in the said provision. This Section was amended with effect from 20.09.1991 by Central Excise and Customs Laws (Amendment) Act, 1991. Under the amended provision, while considering the application for refund, the Assistant Collector of Central Excise is empowered to go into the question as .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

Section and still pending, it shall be deemed that such an application made under amended sub-section (1) of Section 11B of the Act and is to be dealt with in accordance with the provisions of sub-section (2), substituted by the amendment. Thus, the applications even filed under the unamended Act, if not disposed of and still pending, are to be treated as filed under the amended Section 11B and the consequence thereof is that even in respect of such applications doctrine of unjust enrichment wou .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

e said view taken by the High Court in the instant appeal. 5) The facts which need to be noted for the purposes of this appeal do not need a large canvass and are recapitulated in brief, as under: 6) The period involved for which the respondent wanted refund of the excise duty paid by it is 1970-1978. It may be mentioned that there was a dispute regarding the assessable value of cement cleared by the assessee during the aforesaid period, when excise duty of cement was ad valorem. The dispute rel .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

Court of Delhi seeking writ, order or direction for initiating contempt of court proceedings against the Collector of Central Excise, Tiruchirapalli and Assistant Collector of Central Excise, Tiruchirapalli for not granting the refund despite the order of the CEGAT. The said writ petition was disposed of on 18.07.1995. Taking note of the statement of counsel for both the parties that a date may be fixed before the Collector/Assistant Collector to go into the question if the appellant should be .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

C of the Act. The reason for rejecting the claim of the assessee was that the case of the respondent fell within the four walls of the concept of unjust enrichment . Feeling aggrieved by this order, appeal was filed before the Commissioner of Customs and Central Excise (Appeal) which was dismissed on 20.12.1996. Further, appeal was preferred before the CEGAT and in this attempt the assessee triumphed inasmuch as Tribunal decided the case in favour of assessee holding that since no proceedings we .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

oduced in the earlier part of this judgment. Again, as pointed out above, the High Court has answered this question in favour of assessee, recording the following findings: (a) It has been held that there are no merits in this reference, as the question involved is clearly settled by the 9-Judge Bench decision of this Hon'ble Court in the case of Mafatlal Industries Ltd. (supra) wherein this Hon'ble Court held that if an application for refund has been disposed off, and the order had bec .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

11-B in 1991. 7) On the basis of what is pointed out above, it is clear that the exercise to be undertaken is to find out the ratio laid down in Mafatlal Industries Ltd. (supra) in the given situation. Before we advert to the same, we deem it appropriate to refer to, at this stage, unamended and amended provisions of Section 11B. Section 11B: Claim for refund of duty (1) Any person claiming refund of any duty of excise may make an application for refund of such duty to the Assistant Collector o .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

uty of excise becomes due to any persons the Assistant Collector of Central Excise may refund the amount to such person without his having to make any claim in that behalf. (4) Save as otherwise provided by or under this act, no claim for refund of any duty of excise shall be entertained. (5) Notwithstanding anything contained in any other law, the provisions of this Section shall also apply to a claim for refund of any amount collected as duty of excise made on the ground that the goods in resp .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise before the expiry of one year from the relevant date in such form and manner as may be prescribed and the application shall be accompanied by such documentary or other evidence (including the documents referred to in section 12A) as the applicant may furnish to establish that the amount of duty of excise and interest, if any, paid on such duty in relation to which such refund is claimed was collected from, or paid .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ccordance with the provisions of sub-section (2) as substituted by that Act: Provided further that the limitation of one year shall not apply where any duty and interest, if any, paid on such duty has been paid under protest. (2) If, on receipt of any such application, the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise is satisfied that the whole or any part of the duty of excise and interest, if any, paid on such duty paid by the applicant is refundable, he ma .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

or on excisable materials used in the manufacture of goods which are exported out of India; (b) unspent advance deposits lying in balance in the applicant's account current maintained with the Commissioner of Central Excise or Commissioner of Central Excise; (c) refund of credit of duty paid on excisable goods used as inputs in accordance with the rules made, or any notification issued,After 1991 amendment, the material part of Section 11B reads as follows: under this Act; (d) the duty of ex .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

Government may, by notification in the Official Gazette, specify: Provided further that no notification under clause (f) of the first proviso shall be issued unless in the opinion of the Central Government the incidence of duty and interest, if any, paid on such duty has not been passed on by the persons concerned to any other person. (3) Notwithstanding anything to the contrary contained in any judgment, decree, order or direction of the Appellate Tribunal or any Court in any other provision of .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

a resolution moved within a period of fifteen days beginning with the day on which the notification is so laid before the House of the People and if Parliament makes any modification in the notification or directs that the notification should cease to have effect, the notification shall thereafter have effect only in such modified form or be of no effect, as the case may be, but without prejudice to the validity of anything previously done thereunder. (5) For the removal of doubts, it is hereby .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ndia; (B) "relevant date" means,- (a) in the case of goods exported out of India where a refund of excise duty paid is available in respect of the goods themselves or, as the case may be, the excisable materials used in the manufacture of such goods,- (i) if the goods are exported by sea or air, the date on which the ship or the aircraft in which such goods are loaded, leaves India, or (ii) if the goods are exported by land, the date on which such goods pass the frontier, or (iii) if t .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ing been removed from such factory for export out of India, the date of entry into the factory; (d) in a case where a manufacturer is required to pay a sum, for a certain period, on the basis of the rate fixed by the Central Government by notification in the Official Gazette in full discharge of his liability for the duty leviable on his production of certain goods, if after the manufacturer has made the payment on the basis of such rate for any period but before the expiry of that period such r .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

he duty becomes refundable as a consequence of judgment, decree, order or direction of appellate authority, Appellate Tribunal or any court, the date of such judgment, decree, order or direction; (f) in any other case, the date of payment of duty. 9) We have already narrated the facts and events in the instant case in detail above. However, it is pertinent to keep in mind that applications for refund of excise which were preferred by the assessee had already been allowed finally by the orders of .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

d S.C.Sen, J. wrote their separate opinions. Hansaria, J. agreed with the conclusions and reasoning of Paripoornan, J. However, insofar as issue at hand is concerned, they concurred with the majority opinion rendered by B.P. Jeevan Reddy, J. Thus, eight out of nine Judges have taken the same view. A.M. Ahmadi, the then Chief Justice, was the only dissenting Judge, who took contrary view on this particular issue. With this background in mind, we reproduce the following relevant portions from the .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

11-B which had come into force during the pendency of the refund proceedings. The Court held that so long as the refund proceedings are pending, the amended provisions get attracted and disentitle the manufacturer-payer from claiming any refund contrary to the said provisions. In other words, the contention of the manufacturers that the amended Section 11-B applies only to claims of refund arising after the coming into force of the said Amendment Act was rejected. 96. There is yet another circum .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

und. It cannot also be said that by giving retrospective effect to Section 11-B, any vested rights or substantive rights are being taken away. The deprivation, if at all, is not real. The manufacturer has already collected the duty from his purchaser and has thus reimbursed itself. By applying for refund yet, he is trying to reap a windfall; deprivation of that cannot be said to be real or substantial prejudice or loss. A manufacturer had no vested legal right to refund even when he had passed o .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

is not passed on, there is no prejudice; he can always get the refund. 97. There is yet another circumstance: Section 12-B does not create a new presumption unknown till then; it merely gives statutory shape to an existing situation, as explained hereinbefore. At the most, it can be said that there were two views on the subject and Section 12-B affirms one of them. Even without Section 12-B, the true position is the same, as held by us in the earlier part of this judgment. The obligation to pro .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

tantial prejudice or loss. A manufacturer had no vested legal right to refund even when he had passed on the burden of duty to others. No law conferred such a right in him - not Article 265, nor Section 11-B. It was only on account of an incorrect view of law taken in Kanhaiya Lal 1959 SCR 1350 : AIR 1959 SC 135 : (1958) 9 STC 747 and that cannot be treated as a vested legal right. Correction of judicial error does not amount to deprivation of vested/substantive rights, even though a person may .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

llegally collected taxes. It is suggested that the creation of the Consumer Welfare Fund is a mere pretence and not an honest exercise. By reading the Rules framed under Section 12-D, it is pointed out, even a consumer, who has really borne the burden of tax and is in a position to establish that fact, is yet not entitled to apply for refund of the duty since the Rules do not provide for such a situation. The Rules contemplate only grants being made to Consumer Welfare Societies. Even in the mat .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

reply of Shri Parasaran to this criticism runs thus: It ill-becomes the manufacturers/assessees to espouse the cause of consumers, when all the while they had been making a killing at their expense. No consumers organisation had come forward to voice any grievance against the said provisions. Clause (e) of the proviso to sub-section (2) of Section 11-B does provide for the buyer of the goods, to whom the burden of duty has been passed on, to apply for refund of duty to him, provided that he has .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

cations needed in the Rules. The Government is always prepared to make the appropriate changes in the Rules since it views the process as a trial and error method - says Shri Parasaran. 105. It would be evident from the above discussion that the claims for refund under the said two enactments constitute an independent regimen. Every decision favourable to an assessee/manufacturer, whether on the question of classification, valuation or any other issue, does not automatically entail refund. Secti .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

und. Unless the claimant for refund establishes that he has not passed on the burden of duty to another, he would not be entitled to refund, whatever be the proceeding and whichever be the forum. Section 11-B/Section 27 are constitutionally valid, as explained by us hereinbefore. They have to be applied and followed implicitly wherever they are applicable. 108. The discussion in the judgment yields the following propositions. We may forewarn that these propositions are set out merely for the sak .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ises and Salt Act, 1944 read with Central Excise Tariff Act, 1985 or Customs Act, 1962 read with Customs Tariff Act or by misinterpreting or misapplying any of the rules, regulations or notifications issued under the said enactments, such a claim has necessarily to be preferred under and in accordance with the provisions of the respective enactments before the authorities specified thereunder and within the period of limitation prescribed therein. No suit is maintainable in that behalf. While th .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

power under Article 226 has to be exercised to effectuate the rule of law and not for abrogating it. The said enactments including Section 11-B of the Central Excises and Salt Act and Section 27 of the Customs Act do constitute law within the meaning of Article 265 of the Constitution of India and hence, any tax collected, retained or not refunded in accordance with the said provisions must be held to be collected, retained or not refunded, as the case may be, under the authority of law. Both t .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

se mentioned under Proposition (ii) below have to be and must be filed and adjudicated under the provisions of the Central Excises and Salt Act or the Customs Act, as the case may be. It is necessary to emphasise in this behalf that Act provides a complete mechanism for correcting any errors whether of fact or law and that not only an appeal is provided to a Tribunal - which is not a departmental organ - but to this Court, which is a civil court. (ii) Where, however, a refund is claimed on the g .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

other person on another ground; this is for the reason that so far as he is concerned, the decision has become final and cannot be reopened on the basis of a decision on another person s case; this is the ratio of the opinion of Hidayatullah, C.J. in Tilokchand Motichand (1969) 1 SCC 110 : (1969) 2 SCR 824 : AIR 1970 SC 898 and we respectfully agree with it. Such a claim is maintainable both by virtue of the declaration contained in Article 265 of the Constitution of India and also by virtue of .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ords, a claim of this nature is not contemplated by the said enactments and is outside their purview. (iii) A claim for refund, whether made under the provisions of the Act as contemplated in Proposition (i) above or in a suit or writ petition in the situations contemplated by Proposition (ii) above, can succeed only if the petitioner/plaintiff alleges and establishes that he has not passed on the burden of duty to another person/other persons. His refund claim shall be allowed/decreed only when .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

e. The real loss or prejudice is suffered in such a case by the person who has ultimately borne the burden and it is only that person who can legitimately claim its refund. But where such person does not come forward or where it is not possible to refund the amount to him for one or the other reason, it is just and appropriate that that amount is retained by the State, i.e., by the people. There is no immorality or impropriety involved in such a proposition. The doctrine of unjust enrichment is .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ople being unjustly enriched. (iv) It is not open to any person to make a refund claim on the basis of a decision of a court or tribunal rendered in the case of another person. He cannot also claim that the decision of the court/tribunal in another person s case has led him to discover the mistake of law under which he has paid the tax nor can he claim that he is entitled to prefer a writ petition or to institute a suit within three years of such alleged discovery of mistake of law. A person, wh .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

chief. Section 72 of the Contract Act, or for that matter Section 17(1)(c) of the Limitation Act, 1963, has no application to such a claim for refund. (v) Article 265 of the Constitution has to be construed in the light of the goal and the ideals set out in the Preamble to the Constitution and in Articles 38 and 39 thereof. The concept of economic justice demands that in the case of indirect taxes like Central Excises duties and Customs duties, the tax collected without the authority of law shal .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

State by allowing such claims is not an irrelevant consideration. Where the petitioner-plaintiff has suffered no real loss or prejudice, having passed on the burden of tax or duty to another person, it would be unjust to allow or decree his claim since it is bound to prejudicially affect the public exchequer. In case of large claims, it may well result in financial chaos in the administration of the affairs of the State. (viii) The decision of this Court in STO v. Kanhaiya Lal Mukundlal Saraf mu .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

eady refunded and in respect whereof no proceedings are pending before any authority/Tribunal or Court as on this date. All pending matters shall, however, be governed by the law declared herein notwithstanding that the tax or duty has been refunded pending those proceedings, whether under the orders of an authority, Tribunal or Court or otherwise. (ix) The amendments made and the provisions inserted by the Central Excises and Customs Law (Amendment) Act, 1991 in the Central Excises and Salt Act .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

preferred and adjudicated only under the provisions of the respective enactments. No suit for refund of duty is maintainable in that behalf. So far as the jurisdiction of the High Courts under Article 226 of the Constitution - or of this Court under Article 32 - is concerned, it remains unaffected by the provisions of the Act. Even so, the Court would, while exercising the jurisdiction under the said articles, have due regard to the legislative intent manifested by the provisions of the Act. Th .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

11-B applies to all pending proceedings 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 and Union of India v. ITC 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 .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

id that Section 11-B is a device to retain the illegally collected taxes by the State. This is equally true of Section 27 of the Customs Act, 1962. 11) It is clear from the above that in no unambiguous terms and with utmost clarity and certainty, the majority interpreted amended provisions of Section 11B including proviso to sub-section (1) thereof to hold that so long as refund proceedings are pending, the amended provision would get attracted and would disentitle the manufacturer/payer from cl .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

by the court or the refund ordered by the statutory authorities which have become final. It follows from a plain reading of Section 11-B, clauses (1), (2) and (3) of the Act. The provisions contemplate the pendency of the application on the date of the coming into force of the Amendment Act or the filing of an application which is contemplated under law to obtain a refund after the Amendment Act comes into force. I am of the opinion that if the said provisions are held applicable, even to matte .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

xpressed by S.C. Sen, J.: 255. I shall now examine the other provisions of the newly-added sections. Sub-section (1) of Section 11-B requires an application for refund to be made. Sub-section (2) requires the Assistant Commissioner to pass an order of refund provided the conditions set out therein are fulfilled. Sub-section (3) merely lays down that no refund shall be made except as provided in sub-section (2). There is a non obstante clause that this will operate notwithstanding anything to the .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

effect of that judgment, decree or order, except by amending the law retrospectively on the basis of which the judgment was pronounced. 13) Notwithstanding, the aforesaid dicta, Mr. Panda, learned senior counsel appearing for the appellant, still sees some light coming through a small window as he wants pending proceedings to include a situation where refund had not been granted, even when the order was passed, with the submission that the Assistant Commissioner even at this stage was competent .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

unfair to the public as the party (assessee herein) would be unjustly enriched. He also relied upon the orders dated 18.07.1995 by the High Court in Civil Writ No. 3225 of 1991 specifically permitting the Assistant Collector to go into the question whether the assessee is to be granted the refund in spite of amended Section 11B of the Act with the following observation : Both the Counsel agree that a date may be fixed when the petitioner shall appear before the collector/Assistant Collector, Cen .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

mission of Mr. Panda. In the first instance, it requires to be remarked that only after amendment in Section 11B of the Act in the year 1991, any person applying for refund has to establish that incidence of such duty has not been passed on by him to any other person. The unamended provision did not contain any such stipulation. Therefore, under the old provision, the only obligation of the person claiming refund was to make such an application before the expiry of six months from the relevant d .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

erred to any Section 12A of the Act to establish that the amount of duty of excise was collected from the claimant or paid by the claimant and that incidence of such duty had not been passed on by him to any other person . It clearly follows from the above that before the amendment of Section 11B of the Act, principle of unjust enrichment was not incorporated under the unamended provision. In fact that was precisely the reason for amending the provision so that this doctrine of unjust enrichment .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

tries Ltd. (supra). 16) Once we find that no such application was pending and the orders on the said application had already been passed, the proviso ceases to have any application. The reason, even otherwise, is very obvious. Section 11B relates to claim for refund of duty and the procedure for such a refund is stipulated in this section. As per sub-section (1) thereof, any person claiming refund of any duty of excise has to move an application for refund of such duty to the Assistant Commissio .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ing with such an application for refund, the Assistant Commissioner is still empowered to go into this question even when the application was filed before the commencement of the amended provision. This situation would prevail only when there is a pending application before the Assistant Commissioner of Central Excise, which is yet to be decided. If the order for refund on such an application had already been passed before coming into force the amended provision and no application was pending at .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

r refund, which have already been passed, can be invested with the powers to go into the question of unjust enrichment by invoking the proviso to sub-section (1) of Section 11B. In the instant case, the order on the refund application of the respondent had been passed on 06.06.1989, which was much before the amended provision came into operation. In fact, even after the order of refund was passed, the appellant had not refunded the amount and it is in these circumstances that writ petition was f .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

 

 

 

 

 

what is new what is new
  ↓     bird's eye view     ↓  


|| Home || Acts and Rules || Notifications || Circulars || Schedules || Tariff || Forms || Case Laws || Manuals ||

|| About us || Contact us || Disclaimer || Terms of Use || Privacy Policy || TMI Database || Members || Site Map ||

© Taxmanagementindia.com [A unit of MS Knowledge Processing Pvt. Ltd.] All rights reserved.

Go to Mobile Version