TaxTMI 
TaxTMI 
1996 (3) TMI 295
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....claim. Proceedings were thereafter taken up by issuing show cause notice subsequently to the appellants, stating as to why the claim should not be rejected on the grounds of unjust enrichment. 2. The appellants inter alia contended that the letter dated 30-5-1990 was an order disposing the refund claim and the claim cannot be rejected subsequently on the ground of unjust enrichment. In terms of amended Section 11B of the Central Excises & Salt Act, 1944, the claim of the appellants were rejected both by the Assistant Collector as well as the Collector (Appeals). Hence this appeal. 3. The learned Counsels S/Shri Srinivasan and Srinivasa Raghavan appearing for the appellants contended before us that the order of the Asstt. Collector dated 30-5-1990 communicating the decision to refund part of the claim made by the appellants was a sanction order. Therefore, the refund claim has been rightly disposed of in terms of the above order dated 30-5-1990. The learned Counsels contended that in that letter it was mentioned that on a perusal of the claim it was found that the appellant is eligible for refund of Rs. 8,16,277.29. Therefore, the claim is settled. When this is the a....
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....ount collected as duty of excise made on the ground that the goods in respect of which such amount was collected were not excisable or were entitled to exemption from duty and no court shall have any jurisdiction in respect of such claim". 6. The learned Counsel for the appellants stated that the amended Section came into effect from 20-9-1991. Therefore, the refund having been made in terms of the unamended Section and a decision was taken in this regard and which decision was communicated to the appellants by the Superintendent vide his letter dated 30-5-1990 which cannot be said that there is any claim pending. 7. In order to appreciate this contention we hereby reproduce the amended Section 11B which reads as follows : "[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 of Central Excise before the expiry of six months from the [relevant date] : [in such form 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 e....
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.... any judgment, decree, order or direction of the Appellate Tribunal or any Court 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). (4) Every notification under clause (f) of the first proviso to sub-section (2) shall be laid before each House of Parliament, if it is sitting, as soon as may be after the issue of the notification, and, if it is not sitting, within seven days of its re-assembly, and the Central Government shall seek the approval of Parliament to the notification by 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 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 declared that any notification issued under clause (f) of the first proviso to sub-section (2), including any such notification approved or modified unde....
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....f this Act, no refund shall be made except as provided in sub-section (2). 9. The arguments of the learned Counsels that the letter dated 30-5-1990 has already granted the refund and, therefore, this amended Section will not apply, cannot be accepted by us. The reason is that the refund claim is still pending which is not finally disposed of. The letter dated 30-5-1990 reads as follows : "Please refer to your refund application dated 27-11-1989. On perusal of the claim it is found that you are eligible for Refund only Rs. 8,16,277.29 as detailed below. Refund claim for Rs. 9,71,172.19 LESS   claim hit by time bar. Rs. 1,29,051.28 Amount involved in damaged & sub-standard fabrics of 3150 kgs (5355 sq. mts) Rs. 25,843,62  Ineligible amount  Amount eligible for Refund. Rs. 8,16,277.29 If you are willing to accept the refund of Rs. 8,16,277.29, the same may be intimated to this office immediately in writting. On receipt of your concurrence letter, the claim will be settled.". A perusal of this letter goes t....
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....t of the refund had not taken place it must be held that the claim for refund is still pending. 9. The claim application already filed by the petitioner shall be considered by the Assistant Commissioner in the light of criteria laid down in Section 11B(2) of the Central Excises and Salt Act, 1944. In view of the fact that the petitioner's claim for refund has been pending since 1988, the respondent is directed to consider and decide the claim of the petitioner for refund within a period of eight weeks from the date of receipt of a copy of this order and if it is found that petitioner is entitled to the refund, the respondent is directed to make the refund within a period of eight weeks thereafter. The writ petition is ordered accordingly." 10. A perusal of this decision clearly goes to show that the term `refund' in the context means the actual refund of the amount directed to be refunded by the Department. That is the object of the amendment as is evident from Section 11B(3) which specifically provides that the amended provision is to take effect notwithstanding anything contrary contained in any judgment, decree or order or direction of the Appellate Tribunal or a....