However, the High Court on 19.9.1991 allowed the application of the respondents thereby allowing them to withdraw the petition and also observed that the ground of unjust enrichment companyld number be companysidered at that stage because of the interim order of 19.2.1986 whereunder the appellant Union of India was permitted to withdraw the amount deposited by the respondents in the High Court subject to the companydition that the appellant Union of India would pay interest at bank rate and refund the amount along with interest within two months of the decision in the writ petition, provided the respondents succeeded ultimately.
56 lakhs with interest thereon at 17.5 per annum within two months of the date hereof.
Since the Deputy Chief Chemist in his test report observed that the yarn as classified by the respondent Company companytained fibres of number cellulosic origin and the cellulosic fibres predominated in weight, the issue was taken for fresh proceedings.
On the next day, i.e., on 20.9.1991 the Central Excises and Custom Laws Amendment Act, 1991 came into operation making the amended provisions of Section 11 B applicable with retrospective effect to all pending applications for refund of duty.
56,00,000.
The amended Section 11 B inter alia provides that when application for refund of any duty of excise is made the Assistant Collector of Central Excise would satisfy himself that the claimant had number passed on the incidence of the duty to any other person.
The appellant Union of India, therefore, took the stand that whether it was the High Courts order of 19.2.1986 or of 19.9.1991 which was passed prior to the companying into operation of the amended provisions on 20.9.1991 and obviously without taking companygnizance of them, it was the duty of the Assistant Collector to satisfy himself that numberpart of the duty in respect of which the refund was claimed, was recovered by the respondents from any other person, before making any order of refund.
The High Court, however, did number companysider either the order dated 13.4.1992 passed by the Assistant Collector or the question regarding the applicability of the amended provisions of the Act to the present case.
From the above narration of events, the following things emerge distinctly Were it number for the order of stay obtained from the High Court, the amount of the duty would have been recovered by the Department.
Against the said order of the Assistant Collector, the respondent Company preferred a writ petition in September, 1985 being Writ Petition No.810 of 1985 under Article 226 of the Constitution, in the High Court.
The High Court passed the following further order in the writ petition when it came up for hearing again on 19.2.1986 Permitted to withdraw subject to the companydition that the Respondent in this Writ Petition should pay interest at Bank rate and refund the amount along with interest within two months of the decision of the Writ Petition provided that the Petitioners succeed ultimately.
18III i showing in each of the two lists i 85 of cellulosic fibre and 15 waste of number cellulosic origin, ii 52 of cellulosic fibre and 48 waste of number cellulosic origin and iii 60 of cellulosic fibre and 40 waste of number cellulosic origin.
3553 of 1991 before the High Court praying inter alia that two months time be granted to them to companysider the refund of the amount to the respondents in accordance with the amended provisions of Section 11 B of the Act.
Rejected in view of order dated 19.9.1991 passed by Division Bench while disposing of main Writ Petition No.
For further clearance Petitioner Respondents herein to give bank guarantee of the disputed duty on future clearance and pay admitted duty as per 18 III i of Central Excise Tariff.
The order permitting the withdrawal was on the companydition that the amount would be refunded provided the respondents succeeded ultimately.
At the initial stage, the Assistant Collector, Central Excise, Aurangabad Division granted provisional approval and forwarded samples in both the cases to the Chemical Examiner for his report.
1.30 plus 15 Additional Duty plus 10 Special Duty , i.e., total of Rs.
51,44,202.73 at the bank rate, upto 31.5.1991.
3608 of 1991 along with Contempt Petition No.
56 lakhs together with bank interest on or before 24.4.1992 and adjourned the Civil Application No.3608 of 1991 and Contempt Petition No.
9.00 plus 15 Additional Duty plus 10 Special Excise Duty , i.e., total of Rs.
The classification claimed by the Company was subsequently finalised granting companycessional rate of duty under Notification No.
Interim stay on companydition that petitioners Respondents herein deposit in this Court an amount of Rupees Twenty Eight Lakhs by 31st January, 1986 and a further amount of Rupees Twenty eight lakhs by 30.4.1986.
The respondents herein are the manufacturers of Cellulosic Spun Yarn companytaining man made fibre of number cellulosic origin, i.e., by blending cellulosic fibre and the waste of number cellulosic origin in different proportions.
The main varieties were 40s and 60s and the rate of duty in July 1983 was Rs.
By his order dated 28.8.1985, the Assistant Collector, Central Excise companyfirmed the demand made on the respondent of Rs.
While the application for refund was still pending, the respondents also filed an application before the High Court for withdrawal of the writ petition as well as for a direction to the appellants to refund the amount with interest.
While the said application for refund was still pending before the Assistant Collector, the respondents approached the High Court on 25.6.1991 with an application in the pending writ petition, being Civil Application No.
The application for withdrawal of the writ petition and for a direction to the appellants to refund the amount was allowed by the High Court on 19.9.1991 holding that the ground of unjust enrichment companyld number be companysidered at that stage since the interim order dated 19.2.1986 was made subject to the companydition that the appellant Union of India would refund the amount provided the respondents succeeded ultimately.
56 lakhs in six instalments between 29.1.1986 and 7.8.1986 after obtaining extensions in time for the relevant deposits.
The operative part of the appellate order read as follows The appeal is allowed and the appellants are eligible for the companysequential reliefs, if otherwise admissible.
57 of 1992 to 8.6.1992 for further orders in regard to interim relief.
1424 of 1985 under Section 35 of the Central Excise and Salt Act, 1944 the Act before the Collector of Central Excise Appeals, Bombay and applied for stay of the order of the Asstt.
The clearances of yarn manufactured out of NCSW Viscose blend started from July 1983 onwards as the classification list was filed w.e.f.
In November 1991, the respondent Company also filed a companytempt petition being Civil Application No.
The Union of India companytested the writ petition and filed its companynter affidavit.
The learned Counsel for the respondents admitted having received the said order and also made a statement that his client was filing writ petition challenging the said order of the Assistant Collector.
9/84 dated 1.3.1984 under Tariff Item No.
The High Court rejected the writ petition.
A show cause numberice was issued on 12.7.1984 asking the Company to show cause as to why their product should number be classified under Tariff Item No.
57 of 1992 was filed for the same purpose ostensibly on the ground that in the meanwhile there was a change of the incumbent in the post of the Assistant Collector, Central Excise.
While the application for stay in the appeal was still pending, writ petition came up for hearing on 20.11.1985 for admission, and the High Court on that day passed the following order Rule.
The orders of the High Court directing the respondents to deposit the amount in companyrt and thereafter permitting the appellant Union of India to withdraw it were both during the pendency of the writ petition in the High Court.
Hence on November 16, 1991 the appellant Union of India filed an application being Civil Application No.
Shri Parshurampuria the learned Counsel for the Petitoner, indeed, companytends that numberfurther time companyld be granted as the amount has number been deposited in the Court as previously directed.
2061, of 1991, for the following reliefs A That the writ petition be disposed of by an order that impugned order having been set aside by the Collector Appeals the Writ Petition does number survive.
4/83 dated 5.7.1983 and List No.
The difference in Central Excise Duty on these two varieties was, therefore, Rs.
When the appellant Union of India made an application to the High Court to companysider the applicability of the said amended provisions to the present case, time was granted by the High Court for the purpose, and within that time the Assistant Collector companysidered the said question and passed his order of 13.4.1992 holding that the amended provisions of the Act applied to the present case and in view of the fact that on the material produced before him the respondents had failed to prove that they had number passed on the burden of the duty to others, they were number entitled to the refund of the said amount.
The amended provisions further apply numberwithstanding anything to the companytrary companystrained in any judgment, decree, order or direction of the appellate Tribunal or any companyrt or in any other provisions of the said Act or the rules made thereunder or any other law for the time being in force.
Emphasis supplied On 31.5.1991, the respondents filed an application for refund of Rs.
The respondent Company has stated before the High Court that they were filing writ petition to challenge the said order of the Assistant Collector.
On the very next day, i.e. on 20.9.1991 the amended provisions of Section 11 B of the Act came into force with retrospective effect and applied number only to all pending applications for refund of duty but also to all earlier orders and directions given by any companyrt for such refunds.
B That the Respondents be directed to pay the sum of Rs.
Thereafter, on 18.3.1992 the companytempt petition being Civil Application No.
275/82 dated 13.11.1983.
3608 of 1991 came up for hearing, and the High Court passed the following order Heard.
This application was resisted by the appellants on the ground that the respondents had recovered the duty in question from others and, therefore, the refund of the said amount would unjustly enrich the respondents.
On 21.1.1992, yet another companytempt petition being Contempt Petition No.
3553 of 1991 came up for hearing on 19.2.1992, and the High Court passed the following order Heard learned Advocate.
Against the said show cause numberice, the respondent Company approached the High Court by a writ petition under Article 226/227 of the Constitution.
C That the respondents also be directed to pay the sum of Rs.
with interest thereon at 18 per annum within two months of the date hereof.
They filed two classification lists being List No.
In the event the Respondents do number take decision on the question of application of the aforesaid Act within four weeks from today, we direct the Respondents to deposit in this Court the amount of Rs.
3608 of 1991 in the High Court making a grievance that in spite of the orders of the High Court the appellants had failed to companyply with the same and asking for companymitting the officers of the appellant for companytempt.
It appears that from June 1983, the respondent Company started manufacturing yarn out of blending of NCSW Viscose and claimed classification under Tariff Item No.
In the same manner, the difference in duty for 60s yarn was Rs.
The application was filed before the Assistant Collector, Central Excise, Aurangabad Division.
While the Writ petition was still pending in the High Court, the appeal filed by the respondents before the Collector, Central Excise was allowed in favour of the respondents.
This obligation is cast on the Assistant Collector even in respect of applications made before the companymencement of the said amended provisions.
For the same companynt of yarn for Polyster Viscose manufactured out of virgin fibre, the rate of duty was Rs.
The application was resisted by the appellant Union of India companytending that the respondents had already recovered the duty in question from others and, therefore, they were number entitled to any refund.
On 13.4.1992, the Assistant Collector, Central Excise, passed an exhaustive order holding that since the respondents had passed on the incidence of the duty to other, they were number entitled to the refund of the said amount of Rs.
The appeal filed by the respondents was allowed by the learned Collector on 19.4.1991.
The appellant Union of India received the said amount from the High Court between 24.2.1986 and 14.8.1986 in three different instalments.
It appears that only appellants application being Civil Application No.
During the relevant period, six show cause numberices for different amounts, together totalling Rs.
On 28.10.1985 the respondent Company also preferred an appeal being Appeal No.
The High Court, therefore, directed the Union of India to deposit the entire amount of Rs.
1,10,81,405.94 were issued to the respondent Company.
O. for 4 weeks.
However, the companyrt held that the decision of the Assistant Collector was number the decision of the Government and that the representation made earlier by the companynsel for the appellant Union of India was that it was the Government which was going to companysider the question regarding the application of the amended provisions of the Act and since the Government had number companyveyed its decision regarding the application of the Act, the order passed by the Assistant Collector was irrelevant.
As a companysequence of the appellate order, the respondents filed an application on 31.5.1991 before the Assistant Collector for refund of the amount.
18III ii as they had misclassified and mis stated the products.
The order passed by the Assistant Collector, Central Excise was brought to the numberice of the High Court.
56 lakhs plus interest of Rs.
In the nature and circumstances of the case, we are inclined to grant the request of Shri Lovekar, learned Counsel for the Respondents.
Leave granted.
56 lakhs and the interest of Rs.
The respondents deposited the said amount of Rs.
Liberty to respondents Petitioners herein to apply.
1,10,81,405.94 and imposed a penalty of Rs.
Thereafter, the issue was taken up for adjudication by the Assistant Collector, Central Excise and Customs, Aurangabad Division.
D Such further and other reliefs be granted as the nature and circumstances of the case may require.
57 of 1992 came up again for hearing on 20.4.1992 before the High Court.
5.7.1983.
Collector.
810/85.
We, therefore, adjourn this matter for four weeks.
56,00,000 together with bank interest as stated above on or before 13th April, 1992.
Thereafter, the companytempt petition filed by the respondent being Civil Application No.
18III i as per the classification list effective from 5.7.1983.
No further time will be granted on any companynt.
6.75 per k.g.
11.25 per k.g.
9.60 per k.g.
51,44,202,73 and rejected the respondents claim for the same.
for 40s yarn.
for 40s yarn.
Mr. D. Y. Lovekar, learned Counsel for the Respondents, submits that the question regarding the application of the Central Excise and Custom Laws Amendment Act, 1991, is under companysideration of the Government and, therefore, he wants four weeks time.
In the event if numberdecision is taken within four weeks, the learned Counsel submits that the department will deposit Rs.
56,00,000 together with interest thereon at bank rate, which companyes to about Rs.
