TMI Blog2019 (8) TMI 206X X X X Extracts X X X X X X X X Extracts X X X X ..... mmence only when the certificates were actually issued by the Directorate of Sugars cannot be countenanced since they were only enabling certificates and even according to him, the Notification No. 130/1983 relating to the incentive certificate had been issued on 27.04.1983 itself. The amended provisions of the Act came into force on 20.09.1991. The application for refund duty filed on 02.02.1988 was pending before the Original Authority. In that case, the amended provisions of the Act would still be operative and this would prevent the refund since the provisions are retrospectively applicable as stated under Sub-Section (3) of Section 11B of the Act, which had been extracted in the relevant portion referred above in the order of the Hon'ble Supreme Court - the refund claim for the period 1983-1984 and 1984-1985 are clearly barred by limitation under Section 11-B of the Central Excise Act 1944 Appeal dismissed. - C.M.A.No. 2071 of 2008 - - - Dated:- 30-7-2019 - Dr. Justice Vineet Kothari And Mr. Justice C.V. Karthikeyan For the Appellant : Mr. Hari Radhakrishnan For the Respondent : Mr. A.P.Srinivas JUDG ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ime and if so their sanction would entail unjust enrichment. We find from the order of the original authority that the refund claim relating to the period 19.02.1987 to 30.05.1987 was received by the department on 13.07.1987. Therefore, the refund claim relating to the said period was filed with the department in time as prescribed under Section 11-B. As regards the other two claims, they were filed long after the time allowed in the statute. Therefore, we hold that the refund claim for the period 19.02.1987 to 30.05.1987 alone is admissible and the other two are barred by limitation. 4. Mr.Hari Radhkrishnan, learned counsel for the appellant assailed the reasons given by stating that the Government of India had granted incentives to new sugar factories or those factories undertaking expansion projects. The scheme enabled sugar factories to become viable by utilising additional funds generated to such incentives for repayment of loans advanced to them by Central Financial Institutions. It was stated that the Incentive Scheme permitted sugar factories to have a higher free sale quota. The excise duty on the higher free sale quota sugar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Excises and Customs Laws (Amendment) Act, 1991 (40 of 1991), such application shall be deemed to have been made under this sub-section as amended by the Act and the same shall be dealt with in accordance 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 has been paid under protest. 2. .............. 3. ................... 4. ..................................... 9. A reading of the above provision shows that according to the first proviso wherein application for refund were made before the com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Assistant Collector and, therefore, as provided in the Act, the amended provisions were applicable to the said application. Even if we disregard the said fact, on the ground, as urged vehemently on behalf of the respondents, that independently of the said application they were entitled to the refund by virtue of the order dated 19.2.1986 of the High Court, the amended provisions of the Act would still be operative and prevent the refund, since the provisions are retrospectively applicable, as stated in Sub-section (3) of Section 11-B of the Act , to orders passed by the court as well. The said Sub-section reads as follows: (3). Notwithstanding anything to the contrary contained in any judgment, decree, order or direction of the Appellate Tribunal or any Court or in any other provisions of this Act or the rules made thereunder or any other law for the time being in force, no refund shall be made except as provided in Sub-section (2) . The High Court's order of 19.2.1986 under which alone the refund was claimed could not be an exception to the said provisions nor could the High Court have made such order after 20.9.19 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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