TMI Blog1992 (9) TMI 88X X X X Extracts X X X X X X X X Extracts X X X X ..... the 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 11B of the Act, to orders passed by the court as well. 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 20-9-1991 directing the payment contrary to the said provisions. Appeal allowed. - 3576-77(NM) - - - Dated:- 10-9-1992 - M.N. Venkatachaliah, P.B. Sawant and N.P. Singh, JJ. [Judgment per : Sawant, J.]. - Leave granted. 2.The respondents herein are the manufacturers of Cellulosic Spun Yarn containing man-made fibre of non-cellulosic origin, i.e., by blending cellulosic fibre and the waste of non-cellulosic ori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h Court rejected the writ petition. Thereafter, the issue was taken up for adjudication by the Assistant Collector, Central Excise and Customs, Aurangabad Division. During the relevant period, six show cause notices for different amounts, together totalling ₹ 1,10,81,405.94 were issued to the respondent-Company. 7.By his order dated 28-8-1985, the Assistant Collector, Central Excise confirmed the demand made on the respondent of ₹ 1,10,81,405.94 and imposed a penalty of ₹ 500/-. 8.Against the said order of the Assistant Collector, the respondent-Company preferred a writ petition in September, 1985 being Writ Petition No. 810 of 1985 under Article 226 of the Constitution, in the High Court. 9.On 28-10-1985 the respondent-Company also preferred an appeal being Appeal No. 1424 of 1985 under Section 35 of the Central Excises and Salt Act, 1944 (the Act) before the Collector of Central Excise (Appeals), Bombay and applied for stay of the order of the Assistant Collector. 10.The Union of India contested the writ petition and filed its counter-affidavit. While the application for stay in the appeal was still pending, writ petition came up for hearing on 20-11 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... espondents also be directed to pay the sum of Rs.(C) ______ with interest thereon at 18% per annum within two months of the date hereof. Such further and other reliefs be granted as the nature and(D) circumstances of the case may require. 15.The application was resisted by the appellant-Union of India contending that the respondents had already recovered the duty in question from others and, therefore, they were not entitled to any refund. However, the High Court on 19-9-1991 allowed the application of the respondents thereby allowing them to withdraw the petition and also observed that the ground of `unjust enrichment' could not be considered at that stage because of the interim order of 19-2-1986 whereunder the appellant-Union of India was permitted to withdraw the amount deposited by the respondents in the High Court subject to the condition that the appellant-Union of India would pay interest at bank rate and refund the amount with interest within two months of the decision in the writ petition, provided the respondents succeeded ultimately. 16.On the next day, i.e., on 20-9-1991 the Central Excises and Customs Laws (Amendment) Act, 1991 came into operation making ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Heard learned Advocate. Rejected in view of order dated 19-9-1991 passed by Division Bench while disposing of main Writ Petition No. 810/85. 20.Thereafter, on 18-3-1992 the contempt petition being Civil Application No. 3608 of 1991 came up for hearing, and the High Court passed the following order:- Heard. 2.Mr. D.Y. Lovekar, learned Counsel for the Respondents, submits that the question regarding the application of the Central Excises and Customs Laws (Amendment) Act, 1991, is under consideration of the Government and, therefore, he wants four weeks time. In the event if no decision is taken within four weeks, the learned Counsel submits that the department will deposit ₹ 56,00,000/- together with interest thereon at bank rate, which comes to about ₹ 56,00,000/-. Shri Parshurampuria, the learned Counsel for the Petitioner, indeed, contends that no further time could be granted as the amount has not been deposited in the Court as previously directed. In the nature and circumstances of the case, we are inclined to grant the request of Shri Lovekar, learned Counsel for the Respondents. We, therefore, adjourn this matter for four weeks. In the event the Respond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t petition in the High Court. The order permitting the withdrawal was on the condition that the amount would be refunded provided the respondents succeeded ultimately. While the writ petition was still pending in the High Court, the appeal filed by the respondents before the Collector, Central Excise was allowed in favour of the respondents. As a consequence of the appeal being allowed, the appellate order of the Collector clearly stated that the respondents would be eligible for the consequential reliefs if otherwise admissible . As a consequence of the appellate order, the respondents filed an application on 31-5-1991 before the Assistant Collector for refund of the amount. While the application for refund was stil pending, the respondents also filed an application before the High Court for withdrawal of the writ petition as well as for a direction to the appellants to refund the amount with interest. This application was resisted by the appellants on the ground that the respondents had recovered the duty in question from others and, therefore, the refund of the said amount would unjustly enrich the respondents. The application for withdrawal of the writ petition and for a direc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 11B of the Act, to orders passed by the court as well. The said sub-section reads as follows :- Notwithstanding anything to the contrary contained in any (3). 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 20-9-1991 directing the payment contrary to the said provisions. The Assistant Collector in his order of 13-4-1992 has discussed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bypass the statutory provisions which have been specifically enacted to prevent the malpractice. 26.One other contention raised by Shri Parshurampuria was that the Government had issued a circular on 4-1-1991 whereby attention was invited of all the authorities to the instructions of the Central Board of Revenue that if a duty is paid in case of goods which are fully exempted it will be in the nature of deposit with the Government and it will not be in the nature of duty . We are afraid that there is a misconception of the purport of the said circular. As is clear from the circular, it appears that certain manufacturers were trying to claim a grant of credit in respect of the duty paid on goods or in respect of finished goods which had used the goods in respect of which the duty had been paid. In order to avail of the said credit, they were paying duty on exempted goods. It, therefore, became necessary to issue the circular in question and to point out, among other things, in paragraphs 2 and 3 of the same, as follows :- The Ministry of Law has advised 2. inter alia that an exemption notification having been made in accordance with the power conferred by the statute has stat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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