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Judgment
Raju, J.—The above reference has been made at the instance of the applicant - manufacturers u/s 35G of the Central Excises and Salt Act,
1944, of the following questions of law for our consideration and decision :
Whether the law applicable to a claim for refund is the one prevailing at the time of making of the claim (Section 11B of the Act in the present
case) or the one in force at the time the assessments were made (old Rule 11 of the Central Excise Rules, 1944) ?
Whether the provisions of Section 11B(3) of the Act mean that an order-in-appeal passed under the Act in respect of claims made on behalf of
one licensed unit situated in a separate Central Excise Jurisdiction will automatically entitle another licensed unit in another Excise Jurisdiction to a
refund without having to make a separate claim for the same ?
The bare necessary facts for appreciation of the claim and the questions referred for our consideration are that the appellant manufacturers, had
filed five refund claims for a total sum of Rs. 5,19,541.20 on two dates, namely, 29-8-1991 (sic) and 19-9-1991 (sic) relating to the years 1977
to 1981. The said claims appear to be in respect of certain items manufactured by the applicant claimed to be classifiable under Item 26AA(iv) of
the Central Excise Tariff, are exempt from payment of duty, but said to have been wrongly classified under Item No. 68 of the Central Excise
Tariff. On the claim having been court-tenanced only in respect of Rs. 10,679.41 and rejected for the balance relying upon Section 11B of Central
Excises and Salt Act, 1944 (for short ""The Act"") and as having been filed beyond the period of limitation stipulated therein up to the stage of the
Tribunal, reference as above came to be made to this Court.
2.1 Mr. K. Mani, learned Counsel appearing for the applicant contended that Section 11B of the Act will have no application to the case on hand
for the reason that the provisions contained in Section 11B of the Act came into force with effect from 17-11-1980 and the refund related to the
earlier periods and that in respect of such period, it is only Rule 11 of the Central Excise Rules that will apply and consequently, the claim ought to
have been countenanced, the duty the refund of which is sought for having been paid under a mistake of law. The further submission that has been
made is about the consequence of an order of the Central Board of Excise and Customs in No. 160/B/81, dated 28-2-1981 in which it appears
that the Board held that a number of products manufactured by the applicant are not liable to any effective duty and therefore, in terms of the said
order, the appellant became entitled to payment of refund and had no need to make fresh application. It has to be pointed out even at this stage
that the proceedings of the Board relied upon is in respect of an appeal from an order passed by the Collector of Central Excise, Calcutta, in
respect of the manufacturing unit of the applicant - concern, situated within the territorial jurisdiction of the Collector of Central Excise, Calcutta.
The learned Counsel sought to place reliance upon the decision in Vishal Electronics Pvt. Ltd. Vs. Union of India and others, and the decision in
Maharashtra Vegetable Products Pvt. Ltd. and another Vs. Union of India and others, . It is seen from the order of the Tribunal that reliance was
placed by the Tribunal on the decision of a Five Member Bench of the Tribunal in M/s. Atma Steel Private Ltd. v. Collector of Central Excise,
Chandigarh 1984 (17) E.L.T. 331 = 1984 ECR 1409 to reject the claim of the applicant that the provisions of Section 11B of the Act would
apply to all claims irrespective of the period to which it relates to the law of limitation being procedural and applicable to even past claims.
Per contra, Mr. K. Jayachandran, learned Additional Central Government Standing Counsel placed reliance upon the decision of a Constitution
Bench of nine learned Judges of the Supreme Court in Mafatlal Industries Ltd. v. Union of India - 1997 (89) E.L.T. 247, to contend that any claim
relating to refund irrespective of the period to which it relates to and pending as on date for consideration has to be only in accordance with
Section 11B of the Act as amended by Central Act 40 of 1991 and that, therefore, the order of the Tribunal rejecting the claim of the applicant for
refund at any rate does not call for interference.
We have carefully considered the submissions of the learned Counsel appearing on either side. The order of the Central Board of Revenue
dated 28-2-1981 passed in respect of a claim arising out of the order dated 14-8-1980 passed by the Collector of Central Excise, Calcutta, in
respect of the duty paid or payable with reference to the manufacturing units and works situated at Kidderpore and Jhirjirapole, within the
territorial jurisdiction of the Collector of Central Excise, Calcutta, cannot be claimed to automatically entitle to applicant to refund in respect of the
transactions or duty paid by a different unit situated within the territorial jurisdiction of the Collector of Central Excise, Madras, even without a
formal or required applicant for refund in terms of the relevant provisions of law governing the claim for refund. Therefore, it cannot be legitimately
claimed that even in the absence of a regular application for refund automatically the applicant became entitled to refund without preferring a
separate claim for the same in accordance with law. So far as the question as to whether the law applicable to a claim for refund is the one
prevailing at the time of making of the claim (Section 11B of the Act in the present case) of the one in force at the time of assessment, namely Rule
11 of the Central Excise Rules, 1944, we have to hold in terms of the latest decision of the Apex Court in Mafatlal Industries Ltd. and Others Vs.
Union of India (UOI) and Others, that any pending claim has to satisfy the provisions of Section 11B of the Act, as amended by Central Act 40 of
1991 and there could be no order for refund to any manufacturer claiming refund, de hors of outside such provisions of law and also except in
accordance with those provisions. The principles laid down by the Apex Court in the said decision leads only to this inevitable conclusion. At the
same time, we have to point out that the applicant had no occasion to satisfy the requirements of Section 11B as amended by Central Act 40 of
1991 before the Tribunal when the matter was considered earlier. In view of the supervening statutory provisions casting a further obligation on the
part of the applicant claiming for refund to satisfy the further condition imposed as to whether the incidence of the duty paid had not been passed
on by him to any other person, it become necessary for the Tribunal to consider the claim in the light of the supervening legal provisions enacted by
Central Act 40 of 1991 and the declaration of law made by the Supreme Court in the latest pronouncement referred to supra.
Consequently, we answer the questions referred for our consideration in the following manner; so far as question No. 1 is concerned, we are of
the view that the claim for refund has to satisfy Section 11B as amended by Central Act 40 of 1991 and as per the declaration of law made by the
Apex Court in the decision in Mafatlal Industries Ltd. and Others Vs. Union of India (UOI) and Others, . The Tribunal shall also consider the
question once over again in the light of the latest enactment and declaration of law. So far as the second question referred to us is concerned, we
are of the view that there is no automatic entitlement to refund arising out of the order of the Board passed in respect of Calcutta Units situated
outside the Jurisdiction of the Collector of Central Excise, Madras. There will be no order as to costs.