MAHINDRA AND MAHINDRA LIMITED Vs. UNION OF INDIA

JUDGEMENT

(1.) BOTH the above matters can be conveniently disposed of by a common order as they are inter-connected. The petitioners in Writ Petition No. 4152 of 1988 are challenging the legality and validity of the order dated 23rd June 1988 passed ex-parte by the 2nd respondent rejecting the application of the petitioners for refund of an amount of Rs. 1. 66, 34, 080. 00. By the Writ Petition No. 1389 of 1990, the petitioners have challenged the legality and validity of the subsequent order dated 3rd January 1990 passed by the 2nd respondent, rejecting the application for refund in respect of the very same amount after hearing the parties. It may be pointed out that after the Writ Petition No. 1389 of 1990 was filed in this Court, the petitioners had preferred an appeal to the Collector. Central Excise (Appeals) against the said order dated 3rd January 1990 impugned in the said petition. By an order dated 11th February 1991 the appeal was allowed during the pendency of the writ petition. The petition was allowed by us to be amended and the said order dated 11th February 1991 passed in the said appeal has been brought on record. According to the petitioners both the petitions could be taken as disposed of in view of the last order dated 11th February 1991. However, in view of the contentious stand taken on behalf of the respondents, it has become necessary for us to go into the merits of both the writ petitions.

(2.) BRIEFLY stated, the facts giving rise to the present petitions are as follows:

(3.) IN the light of the above factual background, we will now examine the contentions raised by the parties before us. In view of the said order in appeal dated 11th February 1991, it was the submission of Mr. Korde, the learned Counsel appearing for the petitioners that the orders of the 2nd respondent viz. the order dated 23rd June 1988 and the order dated 3rd January 1990 impugned in the writ petitions did not survive and it has now been finally held in favour of the petitioners by the Collector (Appeals) that they were entitled to refund. However because of the pendency of the said writ petition viz. , Writ Petition No. 4412 of 1988, no order directing the department to actually refund the amount of Rs. 1,13,53,580/- has been passed by the Collector (Appeals) although he came to the conclusion that the petitioners were entitled to the refund of the said amount. On the other hand, Mr. Desai the learned Counsel appearing for the respondents submitted that in view of the amended section 11-B of the said Act, which amendment came into operation on 20th September 1991, the petitioners were required to make an application for refund under the said provision and the same would be disposed of in accordance with law. It was his submission that sub-section (3) of section 11-B provides that notwithstanding anything to the contrary contained in any judgment, decree order on direction of the Appellate Tribunal or any Court or in any other provision of this Act or the rules made thereunder of any other law for the time being in force, no refund shall be made except as provided in sub-section (2) of section 11-B According to Mr. Desai section 11-B of the said Act provides for the procedure which has to be followed before any refund could be granted. Thus according to Mr. Desai, there was a complete embargo on any Tribunal or any Court granting any refund contrary to the procedure now laid down by the amended section 11-B of the said Act. He also submitted that the law is settled that the provisions of sub-section (3) of section 11-B are retrospective in effect and thus would cover refund order, if any, passed earlier where refund had not actually taken place.