Full Judgment
3. The ld. Counsel for the respondents drew my attention to Section 149 of the Finance Act 203 and heavily relied on the provision as contained in Sub sections (1), (4) and (5) of Section 149 of the Finance Act, 2003. The relevant provisions are reproduced as under: (1) notwithstanding contained in any judgment, decree or order of any court, tribunal or other authority, any action taken or anything done or purported to have been taken or done under the said sub rules as so amended, shall be deemed to be, and always to have been, for all purposes, as validly and effectively, taken or done as if the said sub rules, as amended by this sub section, had been in force at all material times.
(4). Refund shall be made of all such credit of specified duty, which have not been collected if the amendment made by Sub-section (1) had been in force at all material times.
(5). Notwithstanding anything contained in Section 11B of the Central Excise Act, an application for the claim of refund of the credit of the specified duty paid on capital goods under Sub-section (3) shall be made within six months from the day on which the Finance Bill, 2003 receives the assent of the President.
3. He forcefully argues that the above provisions will have effect on the judgment or order etc. of any authority, Tribunal or Court and in view thereof when the lower authorities have sanctioned the refund, the same could not be denied. In support of his contention he also places reliance on the decision in the case of Bata India Ltd. v. CCE, Patna wherein in para 10 it has been interalia held that the provisions of Section 4A will have overriding effect on the provisions of Section 4 of the Central Excise Act, 1944. Similarly he also relies on Mona Electronics v. CCE, Patna 2001 (135) ELT 1293 (Tri.
Kolkata) to the effect that the provisions of sections are mandatory.
Further he places reliance on the decision in the case of Best & Crompton Engg. Ltd. (supra) to submit that erroneous refund could be made only by virtue of following legal procedure i.e. issuances of show cause notice which has not been done in the present case. He submits that provisions of Section 149 of Finance Act, 2003 have retrospective effect. Therefore, the refund claim sanctioned to the appellant is correct. Besides he also submits that the product in question carries fixed rate of duty. Therefore, the question of passing on incidence of duty to the buyers does not arise.
4 After hearing both sides and perusal of the records, I find that the point of unjust enrichment is required to be considered by the lower authorities in view of Sahakari Khand Udyog Mandal Ltd. (supra). I accordingly remand the matter to the original authority for fresh adjudication and to pass fresh speaking order in the matter after taking into consideration the above mentioned provisions and cited decisions.