TaxTMI 
TaxTMI 
2005 (12) TMI 114
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....ated 1-12-1980 and 6-12-1980. Further appeals were filed by the assessee before the CEGAT and these were allowed vide orders dated 1-6-1989 and 6-6-1989. By these two orders the orders of the Assistant Collector and the Appellate Collector were set aside and the refund applications of the assessee were allowed. It may be mentioned that the amounts of excise duty, which had been claimed by the department had been paid by the assessee under protest in the years 1970 to 1978 and subsequently the assessee made applications for refund under Section 11B of the Central Excise Act, 1944 (hereinafter referred to as 'the Act'). It may also be mentioned that the orders dated 1-6-1989 and 6-6-1989 passed by the CEGAT were accepted by the Revenue. 4. Section 11B was amended with effect from 20th September, 1991 by Section 3 of the Central Excise and Customs Laws (Amendment) Act, 1991. Section 11B(1) as it stood before the Amendment of 1991 was in the following terms : "Section 11B. Claim for refund of duty. - (1) Any person claiming 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....
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....lication, the Assistant Commissioner of Central Excise is satisfied that the whole or any part of the duty of excise paid by the applicant is refundable, he may make an order accordingly and the amount so determined shall be credited to the Fund. Provided that the amount of duty of excise as determined by the Assistant Commissioner of Central Excise under the foregoing provisions of this sub-section shall, instead of being credited to the Fund, be paid to the applicant, if such amount is relatable to : (a) rebate of duty of excise on excisable goods exported out of India or on excisable materials used in the manufacture of goods which are exported out of India; (b) unspent advance deposits lying in balance in the applicant's account current maintained with the Commissioner of Central Excise; (c) refund of credit of duty paid on excisable goods used as inputs in accordance with the rules made, or any notification issued, under this Act; (d) duty of excise paid by the manufacturer, if he had not passed on the incidence of such duty to any other person; (e) the duty of excise borne by the buyer, if he had not passed on the incidence of such duty to any other person; ....
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....e orders of the CEGAT dated 1-6-1989 and 6-6-1989 long before Section 11B was amended. The appeals of the assessee were accordingly allowed by the CEGAT. 9. In the judgment of the CEGAT dated 27-1-1998, as rectified vide R.O.M. Order No. 9-7-1998, it was held that the provisions of Section 11B of the Central Excise Act as amended with effect from 20th September 1991 by the 1991 Amendment were not applicable in the present case, since the refund applications had already been allowed in 1989. It is this decision, which has been questioned by the department in this Reference. 10. On the facts of this case there are no merits in this Reference as the question involved is clearly settled by the 9 Judge Bench decision of the Supreme Court in Mafatlal Industries Ltd. and Others v. Union of India and Others - 1997 (89) E.L.T. 247 (S.C.) = (1997) 5 SCC 536. What has been laid down therein is that if an application for refund has been disposed off, and the order had become final before the 1991 amendment to Section 11B came into force, the principle of unjust enrichment will not apply. 11. It may be mentioned that the main judgment in the case was delivered by Hon'ble Mr. Justice B.....
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....by this clarification made by us." 14. The view expressed by Hon'ble Mr. Justice B.P. Jeevan Reddy is also expressed by Hon'ble Mr. Justice K.S. Paripoornan in para 342 of the judgment, wherein it is observed :- "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 deci....
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....law and find out the mischief, which the legislature wanted to remove. Obviously, the mischief was that under the unamended Section 11B the principle of unjust enrichment was not applicable and hence, an assessee was entitled to refund even if it had passed on the burden to the consumers. 20. In D.R. Fraser & Co. Ltd. v. Minister of National Revenue, AIR 1949 PC 120 (p.l23) Lord Macmillan observed : "When an amending Act alters the language of the principal statute, the alteration must be taken to have been made deliberately." 21. Thus, where the word 'reduce' has been substituted by the word 'modify' it was held that the word 'modify' has a wider connotation so as to include not only reduction but also other kinds of alteration including enhancement, vide Western India Theatres Ltd v. Municipal Corporation, Poona, AIR 1959 S.C. 586 (589); State of U.P v. Malik Zarid Khalid, AIR 1988 S.C. 136 (138); and State of Madhya Pradesh v. G.S. Dall and Flour Mills, AIR 1991 S.C. 772 (783, 784). 22. Similarly when the New Zealand Dairy Board Act, 1953, Section 11 of which, gave the Dairy Board power to appoint committees and to delegate to a committee with the consent of the mini....
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....act in their room and stead, vide Bradlaugh v. Clarke (1883) 8 AC 354 (380). 23. Learned counsel for the department submitted that if we take the view that under the unamended Section 11-B the principle of unjust enrichment will not apply, then such a view will be inequitable and unfair to the public as the party will be unjustly enriched. 24. In our opinion, there is no equity in a tax and considerations of equity are wholly out of place in a taxing statute. This is because the principle of strict interpretation applies to taxing statutes. 25. The principle of strict interpretation of taxing statutes was best enunciated by Rowlatt J. in his classic statement : "In a taxing statute one has to look merely at what is clearly said. There is no room for any intendment. There is no equity about a tax. There is no presumption as to a tax. Nothing is to be read in, nothing is to be implied. One can only look fairly at the language used, (vide Cape Brady Syndicate v. IRC (1921) 1 KB 64 [cited with approval in AIR 1968 S.C. 623.]). 26. In AV Fernandez v. State of Kerala, AIR 1957 SC 657, the Supreme Court of India stated the principle as follows : "If the Revenue sat....