TMI Blog2006 (12) TMI 39X X X X Extracts X X X X X X X X Extracts X X X X ..... ion was rejected. An appeal was preferred thereagainst before the Collector of Central Excise (Appeals). By an order dated 7-9-1989, the said appeal was allowed stating : "...The refund arising due to this order cannot be rejected on the plea that the department has preferred an appeal against the order of CEGAT in the case of Nevichem Synthetic Industries on the basis of which the above order was passed. The facts and circumstances of the appellant's case and that of Nevichem Industries and distinguishable. It is seen that the Asstt. Collector has not based his conclusion upon the ratio of the said CEGAT judgment. A casual reference has been made to the said CEGAT order by the Asstt. Collector after reaching a findings on the classification of the impugned product. In view of the matter the appeal filed by the department against the CEGTAT order will have no effect on the appellants even if it is decided in favour of the department." 3.Appellant thereafter filed several representations dated 21-9-1989 and 11-7-1991 for refund of the said amount. As despite the said representations, the amount in question was not refunded, a notice of hearing was given to it on 6-8-1991. 4.It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Central Excise may refund the amount to such person without his having to make any claim in that behalf." 6.It underwent an amendment on or about 20-9-1991 by reason of Section 3 of the Central Excise and Customs Laws (Amendment) Act, 1991, which reads as under : "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 Commissioner of Central Excise before the expiry of six months 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 in relation to which such refund is claimed was collected from, or paid by, him and the incidence of such duty had not been passed on by him to any other person. Provided that where an application for refund has been made before the commencement of the Central Excise and Customs Laws (Amendment) Act, 1991, such application shall be deemed to have been made under this Sub-section as amended by the said Act and the same shall be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plicable. 8.We have noticed hereinbefore that the application for refund was rejected by the Assessing Authority. It was, however, allowed by the Appellate Authority. It is not in dispute that no further appeal was taken therefrom. The said order, therefore, attained finality. It matters little as to whether the application for refund was in the prescribed form or not. The respondents herein could raise all contentions before the Appellate Authority. In fact, before the original authority, a plea of unjust enrichment was raised. Such a plea, however, appears to have not been raised before the Appellate Authority. If no such plea was raised, only because the appellant herein filed an application to be dealt with on the administrative side for refund subsequently, the same would not, in our considered view, attract the provisions of Section 11B as inserted by the Amending Act of 1991. 9.The application filed subsequently by the appellant was required to be filed to proceed with the matter on administrative side. Appellant had all along been contending that despite such order, the amount in question had not been refunded. It was, therefore, obligatory on the part of the concerned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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. The court's decision must always bind parties unless the condition on which it is passed are so fundamentally altered that the decision could not have been given in the altered circumstances. It is not so herein. Shri Prithvi Cotton Mills Ltd. and Anr. v. Broach Borough Municipality and Ors. and Madan Mohan Pathak v. Union of India and Ors. etc." 13.S.C. Sen, J. who delivered the minority opinion, observed : "I shall now examine the other provisions of the newly added sections. Sub-section (1) of Section 11B requires an application for refund to be made. Subsection (2) requires the Assistant Commissioner to pass an order of refund provided the conditions set out ther ..... X X X X Extracts X X X X X X X X Extracts X X X X
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