Full Judgment
2. Shri G. Sampath, the learned Counsel for the appellants fairly conceded that the appellants had collected duty from their customers and prima facie provisions of Section 11B as amended would apply. He however, urged that the period involved is prior to 29.9.1991 when the relevant provisions regarding unjust enrichment were brought into force by amending Section 11B and therefore the appellants would not be covered by the amended provisions. The appellants as it is could not have organised their affairs in the past taking into consideration the amendment which came at a later point of time. He pleaded that the appellants may be given an opportunity to identify the customers to whom the duty element was passed on and give the benefit to them now.
3. The learned DR pleaded that the issue has been settled by the ruling of the Hon'ble Supreme Court in the case of Union of India v. ITC Ltd. UOI v. Jain Spinners . He therefore, pleaded that the claim for refund is subject to amended provisions of Section 11B and therefore the appellants are not entitled to refund. At this stage the learned Counsel for the appellants pleaded that the amendment to Section 11B is under challenge before the Constitution Bench of the Hon'ble Supreme Court and though no stay has been granted by the Hon'ble Supreme Court, the appellants will be placed at disadvantage in case a decision is given against the appellants by the Tribunal. In support of his plea, the learned Counsel pressed into service the following case laws: (4) Indo Metal Industries v. Asstt. Collector of Central Excise (7) Court room highlights regarding RefundBar of unjust enrichment in ELT Vol. 66.
4. I have considered the pleas made by both the sides. The issue regarding applicability of the amended provisions of Section 11B has been settled by the Hon'ble Supreme Court in the case of UOI v. ITC Ltd. and UOI v. Jain Spinners . The law as it stands does not contemplate an exercise at the time of granting of refund, for giving an opportunity to the assessee for tracing out the customers for passing on the duty element collected from them by the assessees. What has to be seen is at the time when refund is ordered, whether under Section 11B, the duly element has been passed on to the customers or not. In the present case, admittedly duty clement has been passed on to the customers. It is also observed that no stay has been granted by the Hon'ble Supreme Court in respect of the cases pending decision by the Hon'ble Supreme Court in regard to the applicability of amended Section VIB. The matter cannot be kept pending till the outcome of the cases pending before the Hon'ble Supreme Court. In view of above I hold that there is no merit in the appeal and therefore the appeal is dismissed.