Suhas Chandra Sen, J.
1. The facts of the case are as under:-
2. The petitioner at all material times carried on and still now carries on the business of manufacturing hosiery garments. By the Finance Act, 1971 a new Tariff Item No. 22D was inserted in the First Schedule to the said Act for the first time which covered inter alia articles of ready to wear apparel including undergarments and body supporting garments but excluding articles of hosiery. As articles of hosiery were specifically excluded, the petitioner was admittedly not liable to pay any central excise duty at that time and there was no dispute with regard thereto.
3. Tariff Item No. 68 was inserted in the First Schedule to the said Act with effect from March 1,1975. The Central Excise Authorities thereafter took the view that the petitioner had become liable to pay central excise duty on the said goods under Tariff Item No. 68. The petitioner was required by the central excise authorities to obtain central excise licence and to comply with all central excise formalities and to pay central excise duty. Due to such instructions/directions of the central excise authorities the petitioner obtained a central excise licence and paid central excise duty on the said goods with effect from March 1, 1975.
4. The aforesaid position continued till June, 1977. During the said period, that is, from March, 1975 to June, 1977 (hereinafter referred to as the said first period) a total sum of Rs. 1,11,580.86 paise was paid by and/or collected from the petitioner on the said goods manufactured by it at the rates applicable to Tariff Item No. 68. The said sum of Rs. 1,11,580.86 paise was not paid under any protest.
5. In the meantime, the Bengal Hosiery Manufacturers' Association took up the matter with the appropriate authorities and was protesting against the levy of central excise duty on hosiery goods. As the matter was being taken up at the Association level almost all the manufacturers of hosiery goods did not make any individual correspondence with the Department. In or about July, 1977 it was decided in the meeting of the Bengal Hosiery Manufacturers' Association that to safeguard their interests, all the manufacturers of hosiery goods should pay duty under protest. After the said decision a circular was issued by the said Association on July 19,1977 bearing No. BHMA/R/CEC/1701 to all its members advising them that if they were paying duty on the hosiery goods, such payment should be made under protest for which a suitable rubber stamp may be affixed in the monthly returns to the central excise authorities or in the alternative the return may be forwarded under a separate letter indicating that payment is being made under protest. The petitioner accordingly started paying the duty on hosiery goods manufactured by it under protest on and from July, 1977. Such protest was made by the petitioner inter alia on all the monthly returns for the period beginning from July, 1977. A rubber stamp to the effect that central excise duty was being paid under protest was duly put by the petitioner on all the monthly returns for the period from July, 1977 onwards. All the said monthly returns filed by the petitioner are lying with the Central Excise Authorities. The aforesaid position continued till March, 1980. During the said period of July, 1977 to March, 1980 the petitioner paid a total sum of Rs. 6,16,597.49 paise as central excise duty on the said goods under protest under Tariff Item No. 68. On all the returns relating to the said period of July, 1977 to March, 1980 it was duly stated by the petitioner that payment of the said duty was being made by it under protest.
6. On or about April 9,1980 the Gujarat High Court delivered the judgment in the case of Darshan Hosiery Works v. Union of India (reported in : 1980(6)ELT390(Guj) ) holding inter alia that in respect of the said articles of hosiery no central excise duty was or could be leviable under Tariff Item No. 68. The petitioner came to know about the said judgment of the Gujarat High Court in or about May, 1980 and immediately thereafter it collected from its old records all relevant details/particulars as regards the amount paid and/or collected from it under Tariff Item No. 68 on the said articles of hosiery. On June 13, 1980 the petitioner addressed a letter to the Assistant Collector inviting his attention to the said judgment of Gujarat High Court and claiming refund of all amounts collected from it on the said hosiery goods under the said Tariff Item No. 68. The formal refund claim in the prescribed form was thereafter filed by the petitioner on August 4,1980 claiming refund of a total sum of Rs. 7,28,178.35 paise being the amount wrongly and illegally realised from it during the said period of March 1, 1975 to March 31, 1980.
7. The Assistant Collector of Central Excise thereafter issued a notice to show cause dated April 25, 1981 alleging inter alia that the said articles of hosiery were correctly liable to duty under Tariff Item No. 68. The Assistant Collector of Central Excise, however, by his order dated January 22, 1983 rejected the said refund claim of the petitioner by holding inter alia that the said amounts were correctly paid by the petitioner.
8. Against the said order dated January 22, 1983 passed by the Assistant Collector the petitioner filed an appeal. The said appeal was dismissed by holding inter alia that the said hosiery goods were correctly classifiable under Tariff Item No. 68.
9. The petitioner thereafter filed a writ petition under Article 226 of the Constitution of India before this court which was marked as C.R. No. 1298 (W) of 1984 reported in : 1989(41)ELT35(Cal) (Gopal Hosiery and Anr. v. The Assistant Collector of Central Excise, Calcutta XIII Division & Others). In the said writ petition the respondents filed their affidavit-in-opposition and the petitioner his reply. The said matter was thereafter heard by this court and after hearing both the sides a judgment was delivered in favour of the petitioner. It was held in the said judgment that the said articles of hosiery during the relevant period were not covered by or classifiable under Tariff Item No. 68 and that the petitioner was not liable to pay any central excise duty on the said hosiery goods under the said Tariff Item. The matter was remanded to the Appellate Authority only for the purpose of deciding the question of limitation.
10. It was held by the Collector of Customs and Central Excise (Appeals) by the following order:
'I hold that period of six months as provided under erstwhile Rule 11, in the present case would be computed from the date of payment of duty and not from the finalisation of R.T. 12 returns. I accordingly hold that the duty paid during period March 1975 to June 1977 is clearly barred by limitation.
As far as the duty paid during the period July, 1977 to March, 1980 is concerned, the Asstt. Collr. should undertake necessary verification of relevant R.T. 12 return as indicated by me in the foregoing paras.
While disposing of the refund claim for the aforesaid period, the Asstt. Collr. should bear in mind the direction of the Hon'ble High Court for deciding this case within six months from the date of communication of its order. As this order was received at the appellate office on 1st August, 1988, six months should count from the aforesaid date'.
11. The petitioner thereafter made a further writ petition to this court under C.O. No. 3535(W) of 1989 wherein it was stated that the order dated October 13, 1988 passed by the respondent No. 3, the Collector of Central Excise rejecting the said claim of the petitioner in respect of the period from March 1975 to June 1977 and all purported orders passed on classification lists and/or monthly returns for the said period seeking to classify the said products under Tariff Item No. 68 and/or seeking to levy and/or determine the amounts allegedly payable in respect of the said products under Item No. 68 and all purported proceedings relating thereto and the levy/collection of all amounts in respect of the said products under Item No. 68 during the said period were and/or are otherwise erroneous in law. This writ petition was heard out on affidavits and ultimately on 23-8-1991 the following order was passed:
'In view of the judgment of Gujarat High Court in the case of Darshan Hosiery Works v. Union of India, : 1980(6)ELT390(Guj) , the respondents are directed to refund the amount of tax collected Rs. 1,11,580.86 p. by way of refund for the period 1st March, 1975 to 30th June, 1977. It is made clear that the petitioner will not be entitled to pay interest on this amount. The petitioner will also not be entitled to any other amount apart from what is granted by the Department'.
This order, however, was not carried out and ultimately on 7-1-1992 a contempt Rule was issued upon the respondents for the failure to comply with the order passed by this court on 23-8-1991. An application has now been made on behalf of the Collector of Central Excise and others for recalling the order passed on 23-8-1991. This application was filed in court on 20th December, 1991. The case on behalf of the Excise Department is that the Central Excises and Customs Laws (Amendment) Act, 1991 came into force on September 20,1991. By virtue of that amendment Section 11B of the Central Excises and Salt Act, 1944 stood amended. It is the contention of the respondents that by virtue of this amendment no refund is payable to the writ petitioner notwithstanding any judgment of this court to the contrary. The relevant provisions of Section 11B are as under :
'Section 11B. Claims for refund of duty. - (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 in such form as may be prescribed and the application shall be accompanied by such documentary or other evidence (including the documents referred to in Section 12A) as the applicant may furnish to establish that the amount of duty of excise 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 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 as amended by the said Act and the same shall be dealt with in accordance with the provisions of sub-section (2) substituted by that Act :
Provided further that the limitation of six months shall not apply where any duty has been paid under protest.
(2) If, on receipt of any such application, the Assistant Collector of Central Excise is satisfied that the whole or any part of the duty of excise 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 of excise as determined by the Assistant Collector of Central Excise under the foregoing provisions of this sub-section shall, instead of being credited to the Fund, be paid to the applicant, if such amount is relatable to -
**** ****** ****** ******(d) duty of excise paid by the manufacturer, if he had not passed on the incidence of such duty to any other person;
(e) the duty of excise borne by the buyer, if he had not passed on the incidence of such duty to any other person;
**** ****** ****** ******(3) 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 this Act or the rules made thereunder or any other law for the time being in force, no refund shall be made except as provided in sub-section (2).'
12. The scope of this section was examined by this court in an earlier case of Titagarh Paper Mills Co. Ltd. v. Union of India, : 1992(57)ELT527(Cal) . There it was held as under:
'This proviso can only apply to applications which have been made before the amendment came into force but was not dealt with and or disposed of in accordance with the law in force at the material time. On or from 20th September, 1991, the applications which were pending, will have to be dealt with in accordance with the amended provisions of law. In my judgment this provision cannot apply to a case where not only an application for refund was made but dealt with and disposed of by a final order. A specific order was passed by the court. The amended provisions, of Section 11B of the Central Excise Act does not have the effect of nullifying that order.'
13. Mr. Roy Choudhury appearing on behalf of the respondents has argued that in that judgment the scope and effect of the provision of sub-section (3) of Section 11B of the Central Excises and Salt Act, 1944 had not been taken into consideration. Sub-section (3) makes it clear that even if there is a judgment or order of the court to grant relief, even in such a case the refund will have to be withheld unless the assessee can bring his case within the provisions of sub-section (2) of Section 11B. I am unable to uphold this contention. Section 11B on the face of it has no retrospective operation. It came into force on 20th of September, 1991. By virtue of the proviso to Section 11B(1) all applications for refund which were pending for the disposal on that date will have to be dealt with and disposed of in accordance with the provisions of sub-section (2) if the assessee has become entitled to refund by virtue of any pronouncement of any court or of Tribunal. Even in such a case the refund application will have to be processed in accordance with the provisions of sub-section (2).
14. All the applications made after 20th September, 1991 will have to be dealt with according to the amended provisions. There can be no doubt on this question.
15. But the assessee belongs to a third category of persons. His refund application has been dealt with and ultimately disposed of. The refund application was not pending on 20th of September, 1991. A case which stands disposed of before 20th of September, 1991 cannot be reopened by virtue of the amended provisions. The proviso to Section 11B speaks of 'where an application for refund has been made before commencement of the Central Excises and Customs Laws (Amendment) Act, 1991'. It does not deal with any case or applications which have not only been made but also disposed of before the amended provisions came into effect.
16. Sub-section (3) of Section 11B does not create any difficulty. It merely lays down that no refund shall be made except as provided in sub-section (2) notwithstanding anything to the contrary contained in the judgment, decree, order or any provision of the Excise Act or the Rules. Sub-section (2) begins with the phrase 'if, on receipt of any such application, the Assistant Collector of Central Excise is satisfied. . . .' The stage contemplated by sub-section is pendency of an application for refund. In my view, there is no room for any doubt that the amended provisions of Section 11B can only apply to new application for refund made on or after 20th of September, 1991 as well as the applications for refund which were pending on 20th of September, 1991. The amended provision cannot apply to cases where applications for refund have been disposed of and refund orders have been made. The section does not have any effect on refund case which stands concluded by the judgment and order of the Collector or the Tribunal or any court of law. It is only when an application is pending on that date the provisions of sub-section (2) will be attracted. But where an application has been disposed of before 20th of September, 1991, the amended provision will not have the effect of reopening such a case. My attention was drawn on behalf of the petitioner to the Finance Act, 1982, in particular, sub-section (2) of Section 4 of that Act. It was argued where the Legislature wanted to make a provision retrospective notwithstanding anything contained in any judgment, decree or order of any court, Tribunal or other authority, the Legislature usually specifically provides for that. In the instant case, the Legislature has not done that. It cannot be presumed that the Legislature had unintentionally omitted something which should have been specifically done.
17. I see no reason to modify the order passed on 23rd of August, 1991. There is also another aspect of this case. The order which was passed on 23rd of August, 1991 was not carried out. It is only after the amended Act came into force on 20th of September, 1991 this application was filed on 20th of December, 1991. In that view of the matter, there was nothing to prevent the respondents from carrying out the order passed on 23rd of August, 1991 in the presence of the Advocate on behalf of the respondents till 20th of December, 1991. There is also no explanation why the respondents waited till 20th of December, 1991 to make this application. Therefore, the application for review or modification of the order passed on 23rd of August, 1991 is dismissed.
18. In view of the fact that a cheque for a sum of Rs. 1,11,58/- drawn on the United Bank of India, being Cheque No. 304182, dated 16-3-1991 has been handed over in court to-day to the learned Advocate on behalf of the petitioner, no order is passed on the contempt application. The contempt Rule, is, therefore, discharged.
19. There will be no order as to costs.
20. The department is directed to supply xerox copy of this order to the learned Advocates appearing for the parties on usual charges and on an undertaking to apply for and obtain certified copy of this order.