TaxTMI 
TaxTMI 
2001 (1) TMI 704
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....ellants in this matter contend that in so far as the claims of refund after the amendment to Section 11B of the Central Excise Act introducing the provisions of unjust enrichment is concerned, such claims are clearly not enforceable and they do not press the same in view of the law having been clearly laid down by the Apex Court in the case of Mafatlal Industries Ltd. [1997 (89) E.L.T. 247 (S.C.)]. Those claims are for the period 1-4-1989 to 30-6-1989 and 1-7-1989 to 30-9-1989 which arises from Order-in-Original No. 5/90, dated 15-2-1990 which was re-adjudicated again after the conclusion of the proceedings again by the Assistant Commissioner passed second Order-in-Original No. 1543/94, dated 30-6-1994 in respect of both the periods and a common Order-in-Appeal No. 80-85/95 (Try), dated 30-6-1995. The appeal numbers arising from these two claims and relevant particulars are as follows :- Appeal No. E/511/96 Appeal No. E/512/96 (i) Period of claim : 1-4-1989 to 30-6-1989 Period of claim : 1-7-1989 to 30-9-1989 (ii) Amount involved : Rs. 4,07,832.12/- Amount involved Rs. : 3,11,422,92/- (iii) Date of refund claim : 24-4-1989 Date of refund claim : 4-1-1990 (iv) Date of ....
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....ut the Revenue not having agitated the issue before the Apex Court after the culmination of proceedings by passing of the orders by the Tribunal on merits and also holding that they are entitled for the refund in the matter in the respective orders of the Tribunal. As a consequence, the appellants were entitled to receive the cheques in due compliance of the Tribunal's order. However, the Department's understanding was that as in the meantime, the Section 11B had been amended in respect of unjust enrichment, therefore, show cause notices were issued on that plea. The appellants' contention was that in respect of all those proceedings where the matter had attained finality, the provision of unjust enrichment do not apply. The provision would apply only in respect of pending proceedings facing adjudication either before the Tribunal or before the Apex Court. They contend that in their own matter, the same plea had been raised by the Department and the amounts had been credited to the Consumer Welfare Fund and they challenged the same before the Tribunal and the Tribunal in their case as reported in 1998 (101) E.L.T. 669 examined the question [Dalmia Cement (Bharat) Ltd. v. C.C.E., Tr....
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....es integra. The Apex Court in Mafatlal Industries case has clearly clarified and laid down that the doctrine of unjust enrichment would not apply to matters which have reached finality and in those cases the Department is bound to make the refund. We have gone through the entire paragraphs of this aspect and the Tribunal has in the appellant's own case extracted para 146 and rejected the Revenue's contention and has directed the Revenue to refund the amounts as the issue had reached finality. The findings recorded in para 7 in the appellant's own case reported in 1998 (101) E.L.T. 669 is extracted below :- "7. We have considered the submissions and have perused the case law relied on by the parties. The admitted factual position in the case before us is that the present appellants had obtained an order allowing refund of Rs. 4,97,101.01 by Order No. 222/89, dated 6-6-1989 passed by the Tribunal. No appeal had been filed against the said order. The said order had thus, become final. The Department had not implemented the order of the Tribunal when the amendment to the Central Excises and Salt Act was enacted with effect from 20-9-1991 which made it obligatory on the Department....
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....o be filed in such cases, either. No further probe, regarding the requisites for obtaining refund specified in the Amendment Act, 1991, is called for in such cases. The above aspects are fairly clear. Sections 11B(2) and (3) cannot be made applicable to refunds already ordered by the Court or the refund ordered by the statutory authorities, which have become final. It follows from a plain reading of Section 11B, Clauses (1), (2) and (3) of the Act. The provisions contemplate the pendency of the application on the date of the 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 ha....