LAWS(BOM)-1993-6-55

PHENOWELD POLYMER PVT LTD Vs. UNION OF INDIA

Decided On June 25, 1993
PHENOWELD POLYMER PVT.LTD. Appellant
V/S
UNION OF INDIA Respondents

JUDGEMENT

(1.) THE facts giving rise to the filing of this Notice of Motion on May 6, 1992 are not in dispute and are required to be briefly stated to appreciate the claim of the respondents. The petitioner no. , 1 Company filed Writ Petition No. 853 of 1981 seeking refund of duty recovered by respondents without any authority of law. The petition was disposed of by judgment of Division bench dated July 9, 1991 and the relief sought by the petitioners was granted. The operative part of the order reads as under : "the Assistant Collector is directed to grant refund claim after verification within a period of four weeks. In case, the amount is not refunded within four weeks from today, then the petitioners are entitled to recover the amount with interest at 15% per annum form today till realisation. " it is not in dispute that the respondents did not carry out the directions of the Division Bench.

(2.) ON September 20, 1991, Section 11b was introduced in Central Excises and Salt Act (hereinafter referred to as the `act') and the Section, inter alia, provided that notwithstanding anything contained in any other law. the claim for refund shall be made in accordance with the provisions of Section 11b and shall also be disposed of in accordance with the provisions of the act. Long after introduction of Section 11b of the Act, the respondents have taken out the present Notice of Motion on May 6, 1992 seeking variation or modification of the order passed by the Division Bench in the light of the provisions of Section 11b of the Act. Shri Desai, learned counsel appearing on behalf of the respondents, submitted that in view of the enactment of the statutory provisions, the respondents are not bound to carry out the writ issued by this court and in case the petitioners desire refund, then application shall have to be made only under section 11b of the Act.

(3.) SHRI Paresh, learned counsel appearing on behalf of the petitioners, submitted that the application for variation is not maintainable in view of the dictum lad down by the Supreme court in the judgment reported in AIR 1987 SC 943 (State of Uttar Pradesh v. Shri Brahm Datta sharma and Anr. ). The learned counsel placed strong reliance upon the ratio laid down by the supreme Court in Paragraph 10 of the judgment. Paragraph 10 reads as follows: