5 after section 11c of the central excises act, the following se insertion vf new shall be inserted, namely 1d "11d (1) notwithstanding anything to the conrtrary contained in any order or direction of the appellate tribunal or any court or in any other provision of this act or the rules made thereunder, every person who has collected any amount' from the buyer of any go2ds in any manner as representing duty of excise, shall forthwith pay the amount so collected to the credit of the central goverament duties of excise collected from the buyer to be deposited with the central govern: ment (2) the amount paid to the credit of the central government under sub-section (1) shall be adjusted against the duty of excise payable by the person on finalisation of assessment and where any surplus is left after such adjustment, the amount of such surplus shall either be credited to the fund or, as the case may be, refunded to the person who has borne the incidence of such amount, in accordance with the provisions of section 11b and the relevant date for making an application uncer that section in such cases shall be the date of the public notice to be issued by the assistant collector of central excise" 6 after chapter ii of the central excises act, the following chapter shall be inserted, namely:— insertion of new chapter 11a,  "chapter iia indicating amount of duty in the price of goods, etc,, for purpose of refund and crediting certain amounts to the fund| price    | of              ||----------|-----------------|| goods    | to             || indicate |                 || the      |                 || amount   |                 || vf       | duty            || paid     |                 || thereon |                 || a       | notwithstanding || other    | law             || pay      | duty            || goods,   | prominently     || ment,    | sales           || duty     | which           || sold    |                 |12b every person who has paid the duty of excise on any goods under this act shall, unless the contrary is proved by him, be deemed to have passed on the full incidence of such duty to the buyer of such goods presumption that the incidence of duty has been passed 'on to the buyer, 12c (1) there shall be established by the central government a fund, to be called the consumer welfare fund consumer welfare fund, (2) there shall be credited to the fund, in such manner as may be prescribed,— (@) the amount of duty of excise referred to in sub-section (2) of section 11b or sub-section (2) of section 11c or sub-section (2) of section 11d; 0 20 to ss (b) the amount of duty of customs referred to in sub-section (2) of section 27 or sub-section (2) of section 28a, or sub-section (2) of section 28b of the customs act, 1963; (c) any income from investment of the amount credited to 5 the fund and any other monies received by the central government for the purposes of this fund 12d (1) any money credited to the fund shall be utilised by the central government for the welfare of the consumers in accordance with such rules as that government may make in tnis | of          ||-------------|| utilisation || ofthe       || fund       |10 behalf (2) the central government, shall maintain or, if it thinks fit, specify the authority which shall maintain, proper and separate account and other relevant records in relation to the in such forra as may be prescribed in consultation with the comptroller and audi- 15 tor-general of india" 7 in chapter iii of the central excises act, existing section 124 shall be renumbered as section 12e renumbering of exist: ing section 124, as section 125 amendment uf section 27 8 in section 37 of the central excises act, in sub-section (2), after clause (ezii), the following clauses shall be inserted, namely: - 20 "(aeiii) specify the form in wh'ch application for refund shall be made under section 11b; (eziv) provide for the manner in which money is to be credited to the fund; (xxv) provide for the manner in which the fund shall be utili- 25 sed for the welfare of the consumers; (avi) specify the form in which the account and records relating to the fund shall be maintained" chapter iii amendments to the customs act, 1962 amendment of section 2 30 9 in section 2 of the customs act, 1962 (hereafter in this chapter referred to as the customs act), after clause (21), the following clause shall be inserted, namely: - 1of 1944, (21a) "fund" means the consumer welfare fund established under section 12c of the central excises and salt act, 1944) 35 10, for section 27 of the customs act, the following section shall be substituted, namely:— substisution of new section for section 27, '7, (1) any person claiming refund of any duty— (i) paid by him in pursuance of an order of assessment; or claim for refund of duty(ii) borne by him, may make an application for refund of such duty to the assistant collector of customs— (@) in the case of any import made by any individual for ' his personal use or by government or by any educational, reuw ' search or charitable institution or hospital, before the expiry of one year; (b) in any other case, before the expiry of six months, 0 from the date of payment of duty, in such form as may be specified in the regulations made in th's behalf and the application shall be accompanied by such documentary or other evidence (including the documents referred to in section 28c) as the applicant may furnish to establish that the amount of duty in relation to which such refund is claimed was collected from or paid by, him and the incidence of such duty had not been passed on by him to any other person: provided that where an application for refund has been made 15 before the commencement of the central excises and customs laws (amendment) act, 1991, such application shall be deemed to have been made under this sub-section and the same shall be dealt with in accordance with the provisions of sub-section (2): provided further that the limitation of one year or six months, 20 as the case may be, shall not apply where any duty has been paid under protest explanation—for the purposes of this sub-section, "the date of payment of duty", in relation ty a person, other than the importer, shall be construed as "the date of purchase of goods" by such person 25 (2) if, on receipt of any such application, the assistant collector of customs is satisfied that the whole or any part of the duty paid by the applicant is refundable, he may make an order accordingly and the amount so determined shall be credited to the fund: provided that the amount of duty as determined by the assistant 30 collector of customs under the foregoing provisions of this subsection shall, instead of being credited to the fund, be paid to the applicant, if such amount is relatable to— (@) the duty paid by importer, if he had not passed on : the incidence of such duty to any other person; 35 (b) the duty on imports made by an individual for his personal use; = (c) the duty borne by the buyer, if he had not passed on the incidence of such duty to any other person; : (d) the export duty as specified in section 26; 40 (e) drawback of duty payable under sections 74 and 75; (f) the duty borne by any other such class of applicants as the central government may, by notification in the official gazette, specify: provided further that no notification under clause (f) of the 45 first proviso shall be issued unless in the opinion of the central government the incidence of duty has not been passed on by the persons concerned to any other person (3) notwithstanding anything to the contrary contained in any judgment, decree, order or direction of the appellate tribunal or 5 any court or in any other provision of this act or the regulations made thereunder or any other law for the time being in force, no refund shall be made except as provided in sub-section (2) (4) every notification under clause (j) of the first proviso to sub-section (2) shall be laid before each house of parliament, if it is sitting, as soon as may be after the issue of the notification, and, if it is not sitting, within seven days of its re-assembly, and the central government shall seek the approval of parliament to the notification by a resolution moved within a period of fifteen days beginning with the day on which the notification is so laid before 15 the house of the people and if parliament makes any modification in the notification or directs that the notification should cease to have effect, the notification shall thereatfer have effect only in such modified form or be of no effect, as the case may be, but without prejudice to the validity of anything previously done thereunder 20 (5) for the removal of doubts, it is hereby declared that any notification issued under clause (f) of the first proviso to sub-section (2), including any such notification approved or modified under subsection (4), may be rescinded by the central government at any time by notification in the official gazette' 25 11 in section 28a of the customs act, for sub-section (2), the following sub-section shall be substituted, namely:— amendment of section 28a "(2) where any notification under sub-section (1) in respect of any goods has been issued, the whole of the duty paid on such goods, or, as the case may be, the duty paid in excess of that payable 30 onsuch goods, which would not have been paid if the said notification had been in force, shall be dealt with in accordance with the provisions of sub-section (2) of section 27: provided that the person claiming the refund of such duty or, as the case may be, excess duty, makes an application in this behalf 35 to the assistant collector of customs, in the form referred to in sub-section (1) of section 27, before the expiry of six months from the date of issue of the said notification", 12 in chapter v of the customs act, after section 28a, the following section shall be inserted, namely:— insertion of new section 28b 40 "28b, (1) notwithstanding anything to the contrary contained in any order or direction of the appellate tribunal or any court or in any other provision of this act or the regulations made thereunder, every person who has collected any amount from the buyer of any goods in any manner as representing duty of customs, shall 45 forthwith pay the amount so collected to the credit of the central government | duties    | col-     ||-----------|----------|| lected    |          || from      | the      || buyer     | to       || be        | deposit- || ed        | with     || the       |          || central   |          || govern-   |          || ment,     |          |(2) the amount paid to the credit of the central government under sub-section (1) shall be adjusted against the duty payable by the person on finalisation of assessment and where any surplus is left after such adjustment, the amount of such surplus shall either be credited to the fund or, as the case may be, refunded to the 5 person who has borne the incidence of such amount, in accordance with the provisions of section 27 and the application under that section in such cases shall be made before the expiry of six months from the date of the public notice to be issued by the assistant collector of customs" 6 insertion ' ae aoe 13 after chapter v of the customs act, the following chapter shall chapter be inserted, namely:— a va  "chapter va indicating amount of duty in the price of goods, etc, for purpose of refund 15price of 28c notwithstanding anything contained in this act or any goods to other law for the time being in force, every person who is liable tea to pay duty on any goods shall, at the time of clearance of the maine goods, prominently indicate in all the documents relating to assess- 2 'of quty ment, sales invoice and other like documents, the amount of such 29 paid duty which will form part of the price at which such goods are to thereon, be sold hayreg 28d, every person who had paid the duty on any goods under noilanis this act shall, unless the contrary is proved by him, be deemed to of daty have passed on the full incidence of such duty to the buyer of such 9 has been goods" passed on to the buyer, amend-  fs ment of 14 in section 157 of the customs act, in sub-section (2), after a clause (a), the following clause shall be inserted, namely: - "(aa) the form in which an application for refund shall be a ion 27;" 30 seat made under section 27; ment of 15 in section 159 of the customs act, for the word "rule", wherever een it occurs, the words "rule or regulation" shall be substituted 159 statement of objects and reasonsthe question of "unjust enrichment" in cases of goods subject to duty of excise or customs has been the subject-matter of discussion for quite sometime now the concept of "unjust enrichment", in so far as it relates to the said duties, is that any refund of these duties made to any manufacturer or importer, who may have initially paid these duties but had passed on the same to the buyers, would be in the nature of a windfall gain to such manufacturer or importer 2 the public accounts committee made an inquiry into all aspects of the issue relating to refund of central excise duty the committee presented its report to the parliament on the 11th day of march, 1991 the committee has also recommended for the introduction of suitable legislation to amend the central excises and salt act, 1944 and the customs act, 1962 to deny refunds in cases of unjust enrichment 3, the bill aims at giving effect to the aforesaid recommendation of the committee and proposes the following main amendments in the said acts, namely: - (a) the manufacturer or importer of goods shall not be entitled to refund of the duty of excise or, as the case may be, the duty of customs if he has already passed on the incidence of such duty to the buyer; | (b) the burden of proof that the incidence of the duty has not been passed on to the buyer shall be on the person claiming the refund; | (c) every person, who is liable to pay duty of excise or, as the case may be, the duty of customs on any goods, shall be under an obligation to prominently indicate, at the time of clearance of the goods, in all the documents relating to assessment, etc, the amount of duty which will form part of the price at which such goods will be sold; & (d) the refund of any of the said duties is proposed to be made only to the person who has ultimately borne the incidence of such duty; | | (e) it is proposed to establish a consumer welfare fund wherein the amount of duty of excise or, as the case may be, the duty of customs, which is not refundable to the manufacturer or importer or the buyer in accordance with the proposed provisions, shal! be credited in addition, any income from investment of the amount credited to the fund and any other monies received by the central government for the purposes of the fund will be credited to the fund the fund will be utilised by the central government for the welfare of the consumers in accordance with the rules to be made in this behalf; | (j) it is also proposed to provide that notwithstanding anything to the contrary contained in any judgment, decree, order or direction of the appellate tribunal or any court or in any other provision of the said acts, etc, no refund shall be made except as provided in new sub-section (2) of section 11b of the central excises and salt act, 1944 or new sub-section (2) of section 27 of the customs act, 1962; | | (g) it is also proposed to provide that where any manufacturer or importer of goods has collected any amount in any manner from the buyer as representing the duty of excise or, as the case may he, the duty of customs, he shall pay the said amount to the credit of the central government and the said amount shall be utilised in adjusting the duty payable by the manufacturer or importer on finalisation of assessment the surplus, if any, will be dealt with in accordance with the aforesaid provisions of section 11b of the central excises and salt act, 1944 and section 27 of the customs act, 1962, \ 4 the bill seeks to achieve the above objects, new devnr; manmohan singh the 12th august, 1991 memorandum regarding delegated legislationclause 8 of the bill seeks to amend sub-section (2) of section 37 of the central excises and salt act, 1944 so as to enable the central government to make rules for specifying the form in which an application for refund shall be made under sub-section (1) of section 11b of the act, providing the manner in which money is to be credited to the proposed consumer welfare fund, providing the manner in which the said fund shali be utilised for the welfare of the consumers and specifying the form in which the account and records relating to the fund shall be maintained 2 clause 14 of the bill secks to amend sub-section (2) of section 157 of the customs act, 1962 so as to enable the central board of excise and customs to make regulations for specifying the form in which an application for refunds shall he made under section 27 of the act 3 the matters in respect of which the rules or regulations may be made under the aforesaid provisions are matters of administrative detail or procedure and it is not practicable to provide for them in the bill itself the application of legislative power is, therefore, of a normal character |  annexure exxtracts from the central excises and salt act, 1944| j (1 or 1944)      definitions 2 in this act, unless there is anything repugnant in the subject or context,—      claim for refund of duty 11b (1) any person claiming refund of any duty of excise may make an application for refund of such duty to the assistant collector of central excise before the expiry of six months from the relevant date: provided that the limitation of six months shall not apply where any duty has been paid under protest (2) tf on receipt of any such application, the assistant co'lector of central excise is satisfied that the whole or any part of the duty of excise paid hy the applicant should be refunded to him, he may make an order accordingly (3) where as a result of any order passed in appeal or revision under this act refund of any duty of excise becomes due to any person the assistant collector of central excise may refund the amount to such person without his having to make any claim in that behalf (4) save as otherwise provided by or under this act no claim for refund of any duty of excise shall be entertained (5) notwithstanding anything contained in any other law, the provisions of this section shall also apply to a claim for refund of any amount collected as duty of excise made on the ground that the goods in respect of which such amount was collected were not excisable or were entitled to exemption from duty and no court shall have any jurisdiction in respect of such claim :  explanation—for the purposes of this section - (a) "refund" includes rebate of duty of excise on excisable goods exported out of india or on excisable materials used in the manufacture of goods which are exported out of india; (b) "relevant date" means,—  + +   (e) in a case where duty of excise is paid provisionally under this act or the rules made thereunder, the date of adjustment of duty after the final assessment thereof;      111)     power not to duty of excise not levied or shortlevied as aresult of general practice  i chapter iii powers and duties of officers and landholders(2) where any notification under sub-section (1) in respect of any bods has been issued, the whole of the duty of excise paid on such goods, of, as the case may be, the duty of excise paid in excess of that payable pn such goods, which would not have been paid if the said notification had' been in force, shall be refunded in accordance with the said notification: provided that the person claiming the refund of such duty or, as the case may be, excess duty, makes an application in this behalf to the 12a (1) a central excise officer may exercise the powers and discharge the duties conferred or imposed under this act on any other central excise officer who is subordinate to him,   chapter vit surplementat provistons 37, (1)      (2) in particular, and without prejudice to the generality of the foregoing power, such rules may—      power of central government to make ~~ rules  extracts from the customs acr, 1962 (52 or 1962)2 in this act, unless the context otherwise requires,— definiitions       27 [(1) any person claiming refund of any duty paid by him in pursuance of an order of as'assment made by an officer of ciistoms lower claim for refund of duty,in rank than an assistant collector of customs may make an application for refund of such duty to the assistant collector of customs (@) in the case of eny import made by any individual for his personal use or by government or by any educational, research or charitable institution or hospital, before the expiry of one year; (b) in any other case, before the expiry of six months, rrom tue date of payment of duty: | provided that the limitation of one year or six months, as the case may be, shall not apply where any duty has been paid under protest explanation—where any duty is paid provisionally under section 18, the period of one year or six months, as the case may be, shall be computed from the date of adjustment of duty after the final assessment thereof = " oe (2) if on receipt of any such application the assistant collector of customs is satisfied that the whole or any part of the duty paid by the applicant should be refunded to him, he may make an order accordingly- (3) where, as a result of any order passed in appeal or revision under this act, refund of any duty becomes due to any person, the proper officer may refund the amount to such person without his having to make any claim in that behalf (4) save as provided in section 26, no claim for refund of any duty shall be entertained except in accordance with the provisions of th's section (5) notwithstanding anything contained in any other law, the provisions of this section shall also apply to a claim for refund of any amount collected as duty of customs made on the ground that the goods in respect of which such amount was collected were not leviable to such duty or were entitled to exemption from duty and no court shall have any jurisdiction in respect of such claim      28a(1)      (2) where any notification under sub-section (1) in respect of any goods has been issued, the whole of the duty paid on such goods, or as the case may be, the duty paid in excess of that payable on such goods, which would not have been paid if the said notification had been in force, shall be refunded in accordance with the said notification: power not to recover duties not levied or shortlevied as a result of general practice provided that the person claiming the refund of such duty or, as the case may be, excess duty, makes an application in this behalf to the assistant collector of customs before the expiry of six months from the date of issue of the said notification and proves to the satisfaction of the assistant collector of customs that the incidence of such duty had not been passed on to any other person      157 (1)      general powet to make regulations (2) in particular and without prejudice to the generality of the foregoing power, such regulations may provide for all or any of the following matters, namely: -     159, every rule made under this act and every notification issued under sections 11, 11b, 11h, 111, 11k, 11n, 14; 25, 28a, 43, 66, 69, 70, 74, 75, 76, 98, 101 and 123 shall be laid as soon as may be after it is made or issued before each house of parliament while it is in session for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both houses agree in making any modification in the rule or notification or both houses agree that the rule should not be made or the notification should not be issued, the rule or notification shall thereafter have effect only in such modified form or be of no effect, as the case may be; $0, however, that any such modification of annulment shall be without prejudice to the validity of anything previously done under that rule or notification,   rules and certain notifieations to be laid before parliament