CCE Vs. I.T.C. LTD.

JUDGEMENT

(1.) THIS is an appeal filed by the department against the decision of the Collector (Appeals), Mumbai made in GS/799/B.I/92 dated 21.10.1992 whereunder he held that the respondent was entitled to refund of the duty.

(2.) THE respondent is manufacturing well known brand of tobacco, cigarette etc. The disputed period is from 28.2.1986 to 23.6.1986. A notification in terms of Section 11C(1) was made on 26.8.1998 (sic) whereunder it was stated that the Central Government directed that the whole of duty of excise payable under the Act on cut tobacco should not be required to be paid in respect of their commodities. The date of amendment of Section 11C was made on 1.7.1988. The notification issued under Section 11C was on 26.8.1988. The amount was refunded on 18.9.1990. Show cause notice was issued on 27.12.1990. In the impugned order the Collector has held that, following the judgment of the Tribunal in CCE, Chandigarh v. Mahavir Spinning Mills Ltd. , the amount claimed by the respondent should be refunded. The DR argues that the notification was issued on 26.8.1988. Therefore the respondent is not entitled to claim refund. I cannot accept this argument. But she raises an interesting point, viz. question of doctrine of unjust enrichment. She says that when an appeal has been filed before the Tribunal against the impugned order, the entire matter is at large including the legality or otherwise of the order of refund. In other words she contends that appeal is a continuation of original proceedings.

(3.) I have considered the interesting points raised by both sides. I must record that both sides argued in a very clear and cogent manner. If we have to see the things in the proper prospective, we have to come to the following conclusions which are undisputed from the facts. The impugned order was made in 1992. The Assistant Collector passed the order on 6.7.1990 allowing the refund claim. The respondent states that he has actually received the payment on 18.9.1990. Under the circumstances can we say that when the Parliament passed the Act in 1991, amending Section 11B, can the doctrine of unjust enrichment revive especially when the refund has already been ordered and paid to the assessee?