TMI Blog1992 (3) TMI 63X X X X Extracts X X X X X X X X Extracts X X X X ..... se licence and to comply with all central excise formalities and to pay central excise duty. Due to such instructions/directions of the central excise authorities the petitioner obtained a central excise licence and paid central excise duty on the said goods with effect from March 1, 1975. 4. The aforesaid position continued till June, 1977. During the said period, that is, from March, 1975 to June, 1977 (hereinafter referred to as the said first period) a total sum of Rs. 1,11,580.86 paise was paid by and/or collected from the petitioner on the said goods manufactured by it at the rates applicable to Tariff Item No. 68. The said sum of Rs. 1,11,580.86 paise was not paid under any protest. 5. In the meantime, the Bengal Hosiery Manufacturers' Association took up the matter with the appropriate authorities and was protesting against the levy of central excise duty on hosiery goods. As the matter was being taken up at the Association level almost all the manufacturers of hosiery goods did not make any individual correspondence with the Department. In or about July, 1977 it was decided in the meeting of the Bengal Hosiery Manufacturers' Association that to safeguard their interest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed form was thereafter filed by the petitioner on August 4, 1980 claiming refund of a total sum of Rs. 7,28,178.35 paise being the amount wrongly and illegally realised from it during the said period of March 1, 1975 to March 31, 1980. 7. The Assistant Collector of Central Excise thereafter issued a notice to show cause dated April 25, 1981 alleging inter alia that the said articles of hosiery were correctly liable to duty under Tariff Item No. 68. The Assistant Collector of Central Excise, however, by his order dated January 22, 1983 rejected the said refund claim of the petitioner by holding inter alia that the said amounts were correctly paid by the petitioner. 8. Against the said order dated January 22, 1983 passed by the Assistant Collector the petitioner filed an appeal. The said appeal was dismissed by holding inter alia that the said hosiery goods were correctly classifiable under Tariff Item No. 68. 9. The petitioner thereafter filed a writ petition under Article 226 of the Constitution of India before this court which was marked as C.R. No. 1298 (W) of 1984 reported in 1989 (41) E.L.T. 35 (Cal.) (Gopal Hosiery and Another v. The Assistant Collector of Central Excise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eriod were and/or are otherwise erroneous in law. This writ petition was heard out on affidavits and ultimately on 23-8-1991 the following order was passed : "In view of the judgment of Gujarat High Court in the case of Darshan Hosiery Works v. Union of India, 1980 (6) E.L.T. 390, the respondents are directed to refund the amount of tax collected Rs. 1,11,580.86 p. by way of refund for the period 1st March, 1975 to 30th June, 1977. It is made clear that the petitioner will not be entitled to pay interest on this amount. The petitioner will also not be entitled to any other amount apart from what is granted by the Department". This order, however, was not carried out and ultimately on 7-1-1992 a contempt Rule was issued upon the respondents for the failure to comply with the order passed by this court on 23-8-1991. An application has now been made on behalf of the Collector of Central Excise and others for recalling the order passed on 23-8-1991. This application was filed in court on 20th December, 1991, The case on behalf of the Excise Department is that the Central Excises and Customs Laws (Amendment) Act, 1991 came into force on September 20, 1991. By virtue of that amendmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt or in any other provision 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)." 12. The scope of this section was examined by this court in an earlier case of Titagarh Paper Mills Co. Ltd. v. Union of India, 1992 (57) E.L.T. 527 (Cal.). There it was held as under : 'This proviso can only apply to applications which have been made before the amendment came into force but was not dealt with and or disposed of in accordance with the law in force at the material time. On or from 20th September, 1991, the applications which were pending, will have to be dealt with in accordance with the amended provisions of law. In my judgment this provision cannot apply to a case where not only an application for refund was made but dealt with and disposed of by a final order. A specific order was passed by the court. The amended provisions of Section 11B of the Central Excise Act does not have the effect of nullifying that order." 13. Mr. Roy Choudhury appearing on behalf of the respondents has argued that in that judgment the scope and effect of the provision of sub-section (3) of Section 11B of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mber, 1991 as well as the applications for refund which were pending on 20th of September, 1991. The amended provision cannot apply to cases where applications for refund have been disposed of and refund orders have been made. The section does not have any effect on refund case which stands concluded by the judgment and order of the Collector or the Tribunal or any court of law. It is only when an application is pending on that date the provisions of sub-section (2) will be attracted. But where an application has been disposed of before 20th of September, 1991, the amended provision will not have the effect of reopening such a case. My attention was drawn on behalf of the petitioner to the Finance Act, 1982, in particular, sub-section (2) of Section 4 of that Act. It was argued where the Legislature wanted to make a provision retrospective notwithstanding anything contained in any judgment, decree or order of any court, Tribunal or other authority, the Legislature usually specifically provides for that. In the instant case, the Legislature has not done that. It cannot be presumed that the Legislature had unintentionally omitted something which should have been specifically done. ..... 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