KUSUM ENGINEERING WORKS Vs. UNION OF INDIA

JUDGEMENT

(1.) RULE returnable forthwith. Shri Mehta waives service on behalf of the respondents. Heard counsel.

(2.) THE short question which falls for determination in this petition filed under Article 226 of the constitution of India is whether there is any justification for the respondents not to implement the order passed by the Collector (Appeals) on October 4, 1988. Only few facts are required to be stated to appreciate the grievance of the petitioners.

(3.) THE petitioners are the manufacturers of switches and fuse units, D. B. Board, spare parts, etc. The petitioners have filed refund claim for an amount of Rs. 1,51,273. 40 in respect of excess duty paid for the period commencing from June 11, 1987 and ending with November 11, 1987. The petitioners claimed that excess duty was paid without taking into consideration the value of the export clearance. The refund claim was submitted on January 21, 1988. The Assistant collector, Central Excise, directed refund of an amount of Rs. 1,22,699. 75 and rejected the rest of the amount on certain grounds. The petitioners did not file appeal in respect of the claim turned down but the Department filed an appeal before the Collector (Appeals ). The contention urged by the Department was that the grant of refund would result into unjust enrichment and in view of the decision of this Court in the case of M/s. Roplas (India) Limited, 1988 (38) E. L. T. 27 (Bom.), the petitioners are not entitled to any refund. The petitioners resisted the appeal by pointing out that the decision in the case of M/s. Roplas (India) Limited is no longer a good law and a catena of decisions have been delivered by this Court pointing out that the claim for refund cannot be turned down on the doctrine of unjust enrichment. This Court has held that the doctrine is not available for the authorities constituted under the Central Excise Act and the authorities are bound to refund the amount under Section 11a and 11b of the Central Excise act. The Collector (Appeals) upheld the contention urged on behalf of the petitioners and dismissed the appeal filed by the Department by order dated October 4, 1988.