S.K. GIRI Vs. COMMISSIONER OF CUSTOMS, PATNA

JUDGEMENT

(1.) HEARD Shri K.K. Bhattacharjee, Consultant, Shri P.S. Mahapatra, Advocate for Appellant and Shri N.K. Mishra, JDR for Respondent. Mr. Mishra raises a preliminary point that in present case, the refund application is not maintainable as it has been presented by the purchaser prior to amendment from 20th September, 91. The purchaser was not entitled to claim refund. It was only the manufacturer or producer who had paid the Excise Duty to the Govt. of India was in position to claim the refund. A person who has not paid the duty was not entitled to claim any refund against the Union of India. In the support of his contention, JDR relies on the decision in the case of Union of India and another v. Silchar Electric Supply Co. Ltd. reported in 1977 (1) E.L.T. (J 157). In reply, learned Advocate for appellant submits that in the case of Mafatlal Industries Ltd. v. Union of India - 1997 (89) E.L.T. 247 (S.C.), the Honble Apex Court has held that Section 11B have retrospective effect and the refund claims are maintainable. Therefore, he submits the contention of learned JDR is not tenable.

(2.) WE have perused the record and the case laws submitted by rival parties. Certain amendments to Section 11B were made effective from 20th September, 91 by Central Excise and Customs Laws (Amendment) Act, 1991 for the date of enforcement of the amendment and it was made effective from 20th September, 91. By virtue of Section 11B(B) [Explanation B] relevant date means and under this head (e), the provisions have been made for purchaser in case of a person other than the manufacturer, the date of purchase of goods by other person. By this amendment the purchaser was made eligible to claim refund. In the case of Union of India and another v. Silchar Electric Supply Co. Ltd., the Honble High Court of Guwahati has held as under : No doubt the excise duty which has been levied on the manufacturer of the producer, may be eventually passed on to the ultimate consumer or buyer, but so far as the statute is concerned, the liability for paying the tax is on the manufacturer or producer, as the case may be, and the right to collect the same by the Union of India is only against such manufacturer or producer. In my opinion, therefore, (the plaintiff, who was not a manufacturer or a producer and who was, therefore, not required to pay any excise duty to the Union of India directly is in no position to claim refund from the Union of India because the plaintiff had made no payment to the Union of India. It may perhaps enforce a claim if all, other conditions are satisfied, against the defendant No. 3). The contention of learned advocate for appellant is that the provisions have been made retrospective effect is not tenable of the case of Mafatlal Industries Ltd. The Honble Apex Court has held that the provisions of unjust enrichment are applicable on the pending application for refunds and are of retrospective effect but nowhere the Honble Apex Court has held that a purchaser can also file application for refund and can claim refund with retrospective effect. Under these circumstances the contention of the learned Advocate for appellant is not tenable.

(3.) IN present case the refund claim has been filed for the period w.e.f. 1 -4 -91 to 21 -7 -91 which is prior to amendment of the section i.e. 20 -9 -91. The application for refund was also presented after the amendment. Under these circumstances, the refund claim is not maintainable. In view of above discussion, the appeal is not maintainable and we dismiss the appeal.