Mahindra and Mahindra Ltd. Vs. the Union of India (Uoi) and anr. - Court Judgment

Excerpt:
excise - refund - sections 2, 4, 11b and 12d of central excise act, 1944 - petition for refund - section 11-b (1) requires assessee claiming refund to establish that amount of excise duty in relation to which refund claimed paid by him - incidence of such duty not passed on by him to any other person - under amended section 11-b (2) assistant collector of central excise required to be satisfied upon application that whole or part of duty of excise paid by applicant is refundable - only then collector make order and amount determined be credited to fund - fund defined in section 2 (cc) to mean consumer welfare fund established under section 12-d - proviso to sub-section (2) provides amount of duty as determined by collector to be paid to applicant - question subjected to fresh determination in view of section 11-b of amendment act of 1991 - amended provision apply to all future or pending claims for refund and not to claims not resulting in unjust enrichment - petitioner entitled to refund. - maharashtra village police act (46 of 1967)sections 5, 6 & 15: [swatanter kumar, c.j., a.p. lavande & smt. vasanti a. naik, jj] powers of police patil held, section 15 clearly states the varied powers that are vested in the police patil. he is vested with the power to call and examine witnesses, record their statements and search for concealed articles. such are the powers given to the police patil under the provisions of the village police act. the powers vested in the police patil under the provisions of the village police act are relatable to the duties and functions for which the police patil is appointed. to give meaning to these powers beyond the scope of the duties would be an approach not quite permissible in law. the duties, functions and powers of the police patil under the provisions of the village police act do not vest him with the powers which are vested in police officer under the provisions of the criminal procedure code. the powers given to him under the village police act are limited in their nature and scope and are not as wide specific and consequential as the powers of a police officer under the provisions of the criminal procedure code. the police patil is to act unlike a police officer under the orders of the district magistrate and has to report the matters to him and even where he makes some inquiry or investigation, he is expected to submit report to the station officer and has not been empowered to take any further action, like preparation of a charge sheet or its presentation before the court of competent jurisdiction. he is vested with no powers in regard to the powers vested in an investigating officer under the provisions of section 173 of the criminal procedure code. the act does not contain any deeming provision which by fiction of law would term a police patil as a police officer. it could be possible that an act may specifically stipulate that a police patil for all intent and purpose shall be deemed to be a police officer under the provisions of the village police act and/or the criminal procedure code. in the absence of such a deeming fiction of law, it is difficult to confer the status of a police officer in law upon a police patil or accept the contention that the police patil is clothed with the powers and functions of a police officer. neither there is any specific provisions in the act not on principle of implied interpretation it can be said that provisions of the act suggest that the police patil is a police officer in law. his duties, functions and powers are not identical or even closely identical to the powers of a police officer under the provisions of the criminal procedure code. - the effect of the said notification was that if a manufacturer satisfied all the conditions provided therein, the excise duty payable would be only 10%. the said notification as originally enacted was to remain in force only upto 31st december 1986 but was subsequently extended from time to time and was in force till 30th september 1988. (c) it is the petitioners case that they were manufacturing light commercial vehicles duly approved both by the ministry of industry and the industrial adviser. it is the petitioners further case that they satisfied all the conditions laid down in the said notification and were thus eligible to concessional rate of 10% duty and, therefore, they on or about 23rd december 1986 submitted a classification list claiming benefit of the said notification in respect of their light commercial vehicles including cowl and chassis. the then assistant collector central excise, by his letter dated 18th february 1987 approved the classification list but denied the benefit of the said notification altogether to all the vehicles on the ground that sufficient evidence was not produced before him to establish that the conditions specified therein had been satisfied and further held that in any event, the benefit of the said notification would not be available in respect of cowl and chassis as, according to him, they were not motor vehicles. if the petitioner satisfied that the benefit of the refund was passed on to its customers. it was made clear by the interim order that the petitioners should give an undertaking that in the event of failure in the writ petition, they would forthwith refund the amount paid to them with interest thereon at the rate of 15% p. (n) ultimately the 2nd respondent by his order dated 3rd january 1990 rejected the refund claim of the petitioners mainly on the ground that the petitioners failed to establish that the burden of additional duty had not been passed on to the customers. this application was rejected by the high court in view of its order dated 19th september 1991. the assessee filed contempt petition against the failure on the part of the officer of the union of india to comply with the two orders granting refund to the assessee. collector of central excise is required to be satisfied upon such application 'that the whole or any part of the duty of excise paid by the applicant is refundable' and thereupon 'he may make an order accordingly and the amount so determined shall be credited to the fund'.the fund is defined in section 2(cc) to mean consumer welfare fund established under section 12d however, proviso to sub-section (2) provides that the amount of duty as determined by the asstt. 2 on being furnished all the particulars and documents could have still come to the conclusion that the petitioners had failed to establish that the benefit of refund had not been passed on to its customers. 98.02,056/- the 2nd respondent had sufficient material before him to be satisfied that the burden had not been passed on to the customers. that is the reason why the refund order was not passed by the collector (appeals) although he was satisfied with the petitioner's case that no unjust enrichment would result if the refund was granted. although they failed to so satisfy the asstt. collector or the collector (appeals) in appeal is satisfied that no unjust enrichment would result if a refund is granted, the assessee has to be driven to a fresh application and the question is to be subjected to a fresh determination in view of the provisions of section 11-b as amended by amendment act of 1991. in our opinion, the amended provision would apply to all future or pending claims for refund and not to those claims which have been scrutinized and finally found by the authority competent to so decide as not resulting in unjust enrichment.n.d. vyas, j.1. both the above matters can be conveniently disposed of by a common order as they are inter-connected. the petitioners in writ petition no. 4152 of 1988 are challenging the legality and validity of the order dated 23rd june 1988 passed ex-parte by the 2nd respondent rejecting the application of the petitioners for refund of an amount of rs. 1.66, 34, 080.00. by the writ petition no. 1389 of 1990, the petitioners have challenged the legality and validity of the subsequent order dated 3rd january 1990 passed by the 2nd respondent, rejecting the application for refund in respect of the very same amount after hearing the parties. it may be pointed out that after the writ petition no. 1389 of 1990 was filed in this court, the petitioners had preferred an appeal to the collector. central excise (appeals) against the said order dated 3rd january 1990 impugned in the said petition. by an order dated 11th february 1991 the appeal was allowed during the pendency of the writ petition. the petition was allowed by us to be amended and the said order dated 11th february 1991 passed in the said appeal has been brought on record. according to the petitioners both the petitions could be taken as disposed of in view of the last order dated 11th february 1991. however, in view of the contentious stand taken on behalf of the respondents, it has become necessary for us to go into the merits of both the writ petitions.2. briefly stated, the facts giving rise to the present petitions are as follows:(a) the petitioners are engaged in the manufacture inter alia of a range of light commercial vehicles of various models at their factory at nasik. the petitioners manufacture such models both in the form of cowl and chassis or as fitted with various types of bodies to render them suitable for transport of goods or transport of persons or as ambulances. the petitioners generally sell the said vehicles to the distributors who are wholesale buyers wholly independent of the petitioners. some sales are also effected under rate contracts to government agencies and to actual users.(b) on 9th december 1986, the central government issued a notification bearing no. 463 of 1996 in exercise of the powers conferred under rule 8 of the central excise rules, 1944 (hereinafter referred to as the 'said rules'). by the said notification, the central government granted partial exemption from central excise duty to light commercial motor vehicles of a pay-load not exceeding 4.000 kgms. employing indirect injection diesel engine and falling within chapter 87 of the schedule to the central excise tariff act, 1985, provided that the said motor vehicles were manufactured under a programme approved both by the ministry of industry and the industrial advisor of the directorate general of technical development. the effect of the said notification was that if a manufacturer satisfied all the conditions provided therein, the excise duty payable would be only 10%. the said notification as originally enacted was to remain in force only upto 31st december 1986 but was subsequently extended from time to time and was in force till 30th september 1988.(c) it is the petitioners case that they were manufacturing light commercial vehicles duly approved both by the ministry of industry and the industrial adviser. it is the petitioners further case that they satisfied all the conditions laid down in the said notification and were thus eligible to concessional rate of 10% duty and, therefore, they on or about 23rd december 1986 submitted a classification list claiming benefit of the said notification in respect of their light commercial vehicles including cowl and chassis. the then assistant collector central excise, by his letter dated 18th february 1987 approved the classification list but denied the benefit of the said notification altogether to all the vehicles on the ground that sufficient evidence was not produced before him to establish that the conditions specified therein had been satisfied and further held that in any event, the benefit of the said notification would not be available in respect of cowl and chassis as, according to him, they were not motor vehicles. by the said letter, the petitioners were, however, asked to submit fresh application along with evidence to establish that they were entitled to the benefit of the said notification in respect of the vehicles not found to be covered by the said notification. (d) in these circumstances, the petitioners by their letter dated 27th february 1987 informed the assistant collector that they would be paying the excise duty without the benefit of the aforesaid exemption notification but under protest, and by their further letter dated 23rd april 1987 submitted a detailed representation to the assistant collector. it was pointed out in the said letter that the excise authorities in pune were giving the benefit of the said notification to even chassis manufactured by their competitor. a personal hearing was granted and the petitioners by their letter confirmed that the manufacturing programme in respect of the said vehicles had been duly approved both by the ministry of industry and the industrial advisor. (e) ultimately by a letter dated 10th june 1987, the petitioners were permitted to clear all such vehicles under rule 98 of the said rules by availing themselves of the benefit of the said notification, provided requisite information as particularised in the said letter was given. according to the petitioners such information was furnished and by an order dated 4th august 1987, the then assistant collector accepted the contentions of the petitioners and granted to them the benefit of the said notification in respect of all the vehicles including chassis manufactured by them. (f) the petitioners have categorically stated in the petition that they had not recovered excise duty from their customers at full rate in several cases even prior to 10th june 1987 and that after 10th june 1987 they only recovered excise duty at 10% from their customers and credited the duty in excess of 10% whenever they had recovered it from their customers between 9th december 1986 and 10th june 1987. it is the petitioners' contention on the basis whereof both the petitions have been filed that they have become entitled to the refund of the excess excise duty paid by them between 9th december 1986 and 12th june 1987.(g) thus the petitioners submitted a formal refund application for that purpose on or about 15th october 1987 claiming a refund of an aggregate amount of rs. 1,63,34,080/-. it is the further contention of the petitioners in the petition that their refund application pertained to the period when the classification list was being considered and the same having been duly approved by the said order dated 4th august 1987, the petitioners were entitled as a matter of course to the refund of the excess excise duty paid by them and that no question arose of the petitioners even having to submit a refund application and the same was done as a matter of abundant caution. it is further contended in the petition that there was no question of the issue being reagitated as the same had been finally concluded. (h) the petitioners, however, received show cause notice dated 20th may 1988 from the 2nd respondent who had in the mean time taken charge as assistant collector wherein it was contended that the petitioners were not entitled to refund of excise duty in respect of several of the said vehicles on the grounds set out therein and the petitioners were asked to show cause. the petitioners by their letter dated 16th june 1988 asked for extension of time for submitting a reply and for postponement of the personal hearing. on 23rd june 1988, the 2nd respondent i.e. the assistant collector passed an ex-parte order rejecting the claim of refund in respect of certain categories of vehicles and directing the petitioners to file a revised claim which would be considered after redetermination of assessable value under section 4(4)(d)(ii) of the act i.e. if the petitioner satisfied that the benefit of the refund was passed on to its customers. on 26th august 1988, the petitioners, therefore, filed their writ petition no. 4152 of 1988 challenging the said order dated 23rd june 1988. in the mean time, the department filed an appeal against the earlier order of the then assistant collector dated 4th august 1987 granting benefit of the said notification to the petitioners. (i) the said petition came up for hearing and for consideration of interim relief on 5th september 1988 when a division bench of this court granted rule and passed interim order to the effect that pending the hearing and final disposal of the petition, the department should within 4 weeks refund to the petitioner the amounts refundable in pursuance of the said impugned order dated 23rd june 1988 after verification. it was made clear by the interim order that the petitioners should give an undertaking that in the event of failure in the writ petition, they would forthwith refund the amount paid to them with interest thereon at the rate of 15% p.a. from the date of the receipt of said amount. interim injunction was also granted in favour of the petitioners restraining the respondents from proceeding with the hearing of certain notices particulars whereof have been given in the said writ petition no. 4152 of 1988.(j) it is the petitioner's case that the respondents thereafter duly verified the refund claim of the petitioners and the authorities found as a result of such verification that the actual amount of refund to which the petitioners were entitled was not rs. 1,63,34,000/ but rs. 1.66.34.000/- and in pursuance of the interim order passed by this court in writ petition no. 4152 of 1988 an amount of rs. 52,80,500/ was refunded to the petitioners. (k) the petitioners also filed an appeal against the said order dated 23rd june 1988 before the collector of central excise (appeals). the petitioners also made representations to the central board of excise and customs who sent a communication dated 2nd january 1989 to the petitioners clarifying that all vehicles manufactured by the petitioners were entitled for concessional rate of duty under the said notification and it was further stated that the instructions for extending the benefit of the said notification for all light commercial vehicles, including chassis thereof had been issued to collector of central excise. aurangabad. the petitioners, in these circumstances, wrote a letter dated 9th january 1989 to the collector of central excise submitting that appropriate instructions be issued to the jurisdictional assistant collector to refund to the petitioners the balance amount to which they were entitled viz., rs. 1,13,53,580/- . the petitioners were informed by the collector on 6th february 1989 that necessary instructions have been issued to the jurisdictional assistant collector and the petitioners were requested to approach him. thereafter the petitioners addressed three communications to the 2nd respondent for giving effect to the directions issued by the central board. however, the 2nd respondent by his letter dated 24th february 1989 declined to grant any relief to the petitioners on the ground that he having already issued an appealable order, could not pass any further order in the matter. (l) in these circumstances, the petitioners requested the collector (appeals) to expedite the hearing of their appeal which, they had preferred against the said impugned order of the 2nd respondent dated 23rd june 1988. on 27th april 1989, the collector (appeals) allowed the authorities to withdraw their appeal against the order dated 4th august 1987 and subsequently on 19th september 1989 he passed an order allowing the appeal filed by the petitioners against the said order dated 23rd june 1988 and specifically directed the 2nd respondent to decide the issue of refund after giving due consideration to the board's orders. as a result of the said order passed in the petitioners, said appeal, the order dated 4th august 1987 remained operative. (m) therefore, the petitioners addressed a letter to the 2nd respondent to urgently grant refund in their favour. the 2nd respondent by his letter dated 23rd november 1989 required the petitioners to file a fresh application for refund. accordingly though the petitioners were not required in law to do so, they filed a fresh application on 1st december 1989. a personal hearing was granted on 31st december 1989. copies of the minutes thereof have been annexed to the petition. by their letter dated 28th december 1989 the petitioners again pointed out that they were entitled to the refund of balance amount of rs. 1,13,53,580/- which amount had been fully verified by the authorities. (n) ultimately the 2nd respondent by his order dated 3rd january 1990 rejected the refund claim of the petitioners mainly on the ground that the petitioners failed to establish that the burden of additional duty had not been passed on to the customers. the said order dated 3rd january 1990 is impugned in writ petition no. 1389 of 1990. as mentioned earlier, after the said impugned order was passed and after the second writ petition no. 1389 of 1990 was filed, an order has been passed on 11th february 1991 by the collector (appeals) which is annexed as exh. x to the writ petition no. 1389 of 1990. by the said order, the collector (appeals) after considering the points involved in the refund application of the petitioners and after considering the decision of the 2nd respondent, ultimately, while disposing of the petitioners appeal accepted the contention of the petitioners that after the refund of rs. 52,80,500/- in pursuance of the interim order dated 5th september 1988 in writ petition no. 4152 of 1988, the petitioners were entitled to refund of the balance. he thus accepted the petitioners contention that the duty amount of rs. 15,51,524/- was refunded to the dealers and in respect of rs. 98,02,056/- the burden of duty was borne by the petitioners. however, no order of refund of rs. 1,13,53,580/- was passed by him as he held : 'in the result, subject to the outcome of the decision on valuation aspect, the refund cannot be sanctioned, now.' the collector (appeals) thus took notice of the writ petition no. 4412 of 1988 pending in this court in respect of petitioners sales through their depots and did not pass any order for actual refund. (o) the said writ petition no. 4412 of 1988 was also heard by us along with the present two petitions and in the said writ petition yesterday we have delivered a judgment whereby we have upheld the contentions of the petitioners and have set aside the final assessment orders and the show cause notice impugned therein. however, in respect of the claim for refund made in the said writ petition in the sum of rs. 23,7,7,884.09 we have not granted any relief because the question of unjust enrichment which is required to be gone into having not been gone into, in respect thereof the petitioners were free to make an application for refund under section 11-b of the said act and the same to be considered by the department in accordance with law.3. in the light of the above factual background, we will now examine the contentions raised by the parties before us. in view of the said order in appeal dated 11th february 1991, it was the submission of mr. korde, the learned counsel appearing for the petitioners that the orders of the 2nd respondent viz. the order dated 23rd june 1988 and the order dated 3rd january 1990 impugned in the writ petitions did not survive and it has now been finally held in favour of the petitioners by the collector (appeals) that they were entitled to refund. however because of the pendency of the said writ petition viz., writ petition no. 4412 of 1988, no order directing the department to actually refund the amount of rs. 1,13,53,580/- has been passed by the collector (appeals) although he came to the conclusion that the petitioners were entitled to the refund of the said amount. on the other hand, mr. desai the learned counsel appearing for the respondents submitted that in view of the amended section 11-b of the said act, which amendment came into operation on 20th september 1991, the petitioners were required to make an application for refund under the said provision and the same would be disposed of in accordance with law. it was his submission that sub-section (3) of section 11-b provides that notwithstanding anything to the contrary contained in any judgment, decree order on direction of the appellate tribunal or any court or in any other provision of this act or the rules made thereunder of any other law for the time being in force, no refund shall be made except as provided in sub-section (2) of section 11-b according to mr. desai section 11-b of the said act provides for the procedure which has to be followed before any refund could be granted. thus according to mr. desai, there was a complete embargo on any tribunal or any court granting any refund contrary to the procedure now laid down by the amended section 11-b of the said act. he also submitted that the law is settled that the provisions of sub-section (3) of section 11-b are retrospective in effect and thus would cover refund order, if any, passed earlier where refund had not actually taken place. 4. in support of his submissions mr. desai relied on several decisions. the first decision on which he placed reliance was the decision of the supreme court in the matter of union of india v. jain spinners limited, reported in : 1992(61)elt321(sc) wherein it was inter alia held by the supreme court that on 20-9-1991 the amended provisions of section 11-b of the act came into force with retrospective effect and applied not only to all pending applications for refund of duty but also to all earlier orders and directions given by any court for such refunds. it was further held that the amended section 11-b of the said act inter alia provided that when application for refund of any duty of excise is made, the assistant collector must satisfy himself that the claimant had not passed on the burden of the duty to others and this obligation is cast on the assistant collector even in respect of the applications made before the commencement of the said amended provisions and that the amended provision would further apply notwithstanding anything to the contrary contained in any judgment, decree, order or direction of the appellate tribunal or any court or in any other provisions of the act or the rules made thereunder or any other law for the time being in force. 5. mr. desai next relied on the decision of the supreme court in union of india v. itc limited, reported in : 1993ecr5(sc) , wherein the supreme court again following its earlier decision in jain spinners case (supra) reiterated that the provisions of section 11-b were retrospective in operation. mr. desai thereafter relied on two decisions of a division bench of this court in the matter of excell chemicals pvt. ltd. & anr, v. union o f india & anr, reported in 1996(65) e.c.r. 178 and in the matter of pfizer ltd. & 5 ors. v. union of india, reported in 1996(4) bom.c.r. 119 : 1996(65) e.c.r. 155 wherein the division bench followed the supreme court decisions in jain spinners (supra) and i.t.c. (supra).6. mr. korde, however, joined issues with mr. desai and contended that although the provisions of amended section 11-b of the said act were held retrospective in nature, in a given case were a party has become entitled to refund, has applied for refund and an order is passed after going into the question of unjust enrichment, there was no question of again approaching the department for refund. it was his submission that the provisions of section 11-b of the act are enacted to ensure that no unjust enrichment took place. the submission put differently was that once the claim of refund was scrutinised by the department and the assessee had been found to have established that the incidence of such duty had not been passed on by him to other person, there was no question of the same exercise being undergone again. it was his submission that none of these decisions lay down that although the question of unjust enrichment had been gone into by the assistant collector, the assessee must be required to apply for refund again for determination of the said question again, simply because by the time an actual refund is made the amended section 11-b of the act had come into operation. 7. in order to appreciate the submissions advanced by mr. korde, it is necessarily to go through the facts of these decisions. in jain spinner's case (supra) refund was allowed by the assistant collector as a result of approval of the classification list as filed by the assessee provisionally. subsequently on receipt of a test report from the deputy chief chemist, the department took a view that the refund was erroneous and sought to recover by issuance of notice. the assistant collector confirmed the demand of payment of the duty made on the respondents by imposing penalty. the assessee questioned the order of the assistant collector through a writ petition before the high court and also by filing appeal before the collector. central excise (appeals). high court issued interim stay in favour of the assessee against the demand confirmed against the assistant collector's order subject to the assessee depositing the amount of the demand in the court. the respondent therein i.e. union of india, was permitted to withdraw the said amount by an interim order of the court passed on 19th february 1986 subject to the condition that the respondent in that writ petition should pay interest at bank rate and refund the amount along with interest within two months of the decision of the writ petition provided that the petitioners succeeded ultimately. the appeal filed by the assessee before the appellate authority however, succeeded and consequential reliefs was ordered 'if otherwise admissible'. the assessee thereupon filed an application to the assistant collector for refund of the duty. while the said application for refund was still pending, the assessee approached the high court with an application in the pending writ petition stating that in view of the appellate authority having set aside the order, the writ petition no longer survived, and a direction be passed on the respondent to pay the amount along with interest. high court allowed the application of the assessee on 19th september 1991 and directed the union of india to refund the amount due to the assessee. on 20th september 1991 act 41 of 1991 came into force. thus amended section 11-b came into force prohibiting grant of refund except in accordance with the provisions of sub-section (2) of section 11-b union of india took the stand that whether it was the high court's order of 19th february 1986 or of 19th september 1991, it was the duty of the assistant collector to satisfy himself that no part of the duty in respect of which the refund was claimed, was recovered by the respondents from any other person, before making any order of refund. union of india sought two months time to consider the refund of the amount in accordance with the amended provisions of section 11-b of the act. this application was rejected by the high court in view of its order dated 19th september 1991. the assessee filed contempt petition against the failure on the part of the officer of the union of india to comply with the two orders granting refund to the assessee. the contempt petition came up for hearing on 18th march 1992. the learned counsel for the union of india submitted that the question regarding applicability of the amended act was under consideration of the government and time was sought. on 13th april 1992, the assistant collector passed an exhaustive order holding that since the assessee had passed on the incidence of the duty to others, they were not entitled to the refund. the high court at the time of hearing of the contempt petition on 20th april 1992 was apprised of the order of the assistant collector but had held that the decision of the assistant collector was not a decision of the government and directed the union of india to deposit the entire amount with bank interest. it was in this background that the union of india filed an appeal before the supreme court against the order dated 20th april 1992 passed by the high court. the supreme court held that the high court's order dated 19th february 1986 under which alone the refund was claimed could not be an exception to the provisions of section 11-b of the act nor could the high court have made such order after 20th september 1991 directing the payment contrary to the amended provisions of section 11-b(2) of the act. it will be seen from the facts narrated above that at no time prior to 20th september 1991 i.e. the day on which the amended section 11-b of the act came into force, the question of unjust enrichment was gone into and despite the assistant collector passing an exhaustive order on 13th april 1992 holding that the assessee had passed on the incidence of the duty to others and that it was not entitled to received the refund, the high court still on 20th april 1992 insisted that its earlier order dated 19th february 1986 should have been complied with. thus it will be seen that in this background the supreme court held that the order of the high court dated 20th april 1992 was erroneous. it was held by the supreme court that therefore, the order passed by the high court could not be sustained. 8. as far as the decision of the supreme court in i.t.c. (supra) is concerned, i.t.c., the respondents therein, followed the self removal procedure and under a mistake of law regarding the true interpretation of section 4(a) of the said act, paid excess excise duty while clearing its products and therefore made five applications for refund before the appropriate authority. all five were rejected i.t.c. preferred appeals to the collector of central excise (appeals). out of five claims which were rejected, three were granted and rejection of two was confirmed as being time barred. i.t.c. filed a writ petition in the high court which was allowed and the department was directed to refund the amount in excess paid by i.t.c. a special leave petition was filed by the department to the supreme court. while granting special leave, the supreme court passed an order directing the department to pay the amount in question against bank guarantee. when the appeal came up for hearing the department raised the plea based on section 11-b as amended. the supreme court directed i.t.c. to furnish documentary or other evidence to establish that the amount of duty in relation to which refund was claimed was collected or paid by it and the incidence of such duty had not been passed on by i.t.c. to any other person. no such material was produced although an affidavit stating that the incidence of duty had not been passed on to any other person was filed. the supreme court agreeing with the high court held that the department had wrongly put the bar of limitation. however, dealing with the provisions of section 11-b as amended by act 40 of 1991 it held that the amendments were aimed at preventing unjust enrichment. the question of unjust enrichment was raised for the first time by the union of india, the appellants, in the supreme court as can be seen from the facts of the case. from the above facts it is clear that at no stage question of unjust enrichment was gone into, that the matter relating to refund was thus wide open before the supreme court and had not been finally settled when act 40 of 1991 came into force and that at the time of the interim order passed by the supreme court while granting special leave to appeal, the question of refund claim was not finally concluded. the above facts will show that the supreme court in the facts and circumstances of the case instead of directing the assessee therein viz., i.t.c. to proceed under the amended provisions of section 11-b, itself considered the said question and decide against i.t.c. as no material was produced by i.t.c. to show that the incidence of duty was not passed on to its customers. 9. now coming to the decision of this court in the matter of excell chemicals (supra) the matter related to two claims of refund- one for rs. 7,54,714.70 and the other in respect of rs. 5,15,559.92. as far as the first amount of rs. 7,54,714.70 was concerned, this court held that the refund in respect thereof was already granted to the petitioners therein as an assessment memorandum was issued on 25th june 1986 under which it was held that petitioners were exempted from payment of the exemption notifications in question and the petitioners were therefore, directed to take credit for the said amount in their personal ledger account but the petitioners therein had not availed of the said refund which was granted. however, in respect of the other claim of rs. 5,15,559.92 this court held, following the said decisions of the supreme court in jain spinners (supra) and i.t.c. ltd. (supra), that the same would be subject to the provisions of section 11-b of the said act as amended by amendment act 40 of 1991. there is nothing to show from the facts narrated that in respect of the second claim for refund of rs. 5,15,559.92 the aspect of unjust enrichment was not at all gone into. this brings us to the decision of this court in the matter of pfizer ltd. (supra). the only question involved and posed at the outset of the said decision was whether the high court in exercise of jurisdiction under article 226 of the constitution should order refund of excise duty paid because of erroneous interpretation of a tariff item or exemption notification or ignorance of such notification, despite the fact that such applications are filed with the authority beyond the prescribed period of six months as provided under section 11-b of the act. from the facts it appears that the question of unjust enrichment had not been gone into at all. obviously the question as to whether the assessee therein viz., pfizer ltd, had in fact passed on the incidence or burden of the duty to the customers or not was not gone into while refund application of pfizer ltd. was rejected by the department. 10. sub-section (1) of section 11-b now requires an assessee claiming refund to establish that the amount of excise duty in relation to which refund is claimed was collected from, or paid by him and the incidence of such duty has not been passed on by him to any other person. by reason of the amendment to sub-section (2) thereof, the asstt. collector of central excise is required to be satisfied upon such application 'that the whole or any part of the duty of excise paid by the applicant is refundable' and thereupon 'he may make an order accordingly and the amount so determined shall be credited to the fund'. the fund is defined in section 2(cc) to mean consumer welfare fund established under section 12d however, proviso to sub-section (2) provides that the amount of duty as determined by the asstt. collector shall instead of being credited to the fund be paid to the applicant if such amount is relatable to, inter alia, excise duty paid by the applicant-manufacturer, if he had not passed on the incidence of such duty to any other person. 11. in the above background let us examine mr. korde's submission to the effect that the petitioners had established that the burden of excise duty in relation to which refund was claimed was not passed on to the customers. mr. korde drew our attention to the letter dated 11th april 1988 addressed by the petitioners to the 2nd respondent in respect of petitioner's claim for refund of rs. 1,66,34,080, it was stated therein that the said claim was pending for fulfillment of verification of documents confirming that the benefit of the said notification had been passed on to dealers/customers, that out of total claim amount of rs. 1,66,34,080/- paid by them under protest, an amount of rs. 15.51,524/- had been already refunded to the dealers/customers and documentary evidence was available for verification and that in respect of the balance, invoices were raised for lesser amount as per the said notification, a detailed list was available for verification. on this basis the refund of the entire amount was claimed. replying to the contention raised by mr. desai to the effect that in respect of the balance of amount sought to be recovered by the petitioners viz., rs. 1,13,53,580/- they should be directed to approach the department under section 11-b of the act and in respect of rs. 52,80,500/- also the petitioners be ordered to bring back the said amount and also file application for refund. mr. korde countered that the order passed by this court in writ petition no. 4512 of 1988 was in pursuance of the order passed by the 2nd respondent which order was impugned in the said writ petition. it was further submitted by mr. korde that in effect the 2nd respondent had ordered that on the petitioner's satisfying that the benefit of refund has been passed on to its customers, meaning thereby that the burden of duty had not been passed on to the customers, their claim for refund in respect of vehicles according to him covered by the notification would be considered. mr. korde is right in his submission that nowhere from the interim order passed by this court it can be spelt out that the department was directed to refund a particular amount. all that the interim order did was to direct respondent no. 2 to follow his own order. surely the department could not or cannot have any quarrel with the same when in fact its order was asked to be followed, may be as an interim arrangement. respondent no. 2 on being furnished all the particulars and documents could have still come to the conclusion that the petitioners had failed to establish that the benefit of refund had not been passed on to its customers. mr. korde relied on the letter dated 22nd september 1988 addressed by the 2nd respondent to the petitioners calling upon them to produce record to show that in respect of the petitioner's claim for refund of rs. 52,80,500/- they had passed on the benefit of the refund to their customers or they had raised invoices giving the benefit of the notification in question to enable him to finalise their refund claim in view of this court's interim order. mr. korde also relied on the petitioners reply dated 22nd september 1988 wherein the petitioners clarified that in respect of the said claim of rs. 52,80,500/- they had passed on the benefit while raising invoices on some of their customers and in respect of the remaining customers, necessary credit notes/cheques were issued thus returning the excess amount recovered. the petitioners sent details of such credit notes/cheques for verification. it is clear from the above correspondence that only after verifying the record to satisfy himself that the petitioners had passed on the benefit to their customers that the refund of rs. 52,80,500/- by the 2nd respondent was granted. thus qua that amount the question of unjust enrichment had been gone into. in respect of other two amounts of rs. 15,51,524/- and rs. 98.02,056/- the 2nd respondent had sufficient material before him to be satisfied that the burden had not been passed on to the customers. the issue can be considered now concluded in view of the decision of the collector (appeals) dated 11th february 1991 and mr. korde is again right in his submission that the order impugned in the writ petition no. 4152 of 1988 viz., the order of 2nd respondent dated 23rd june 1988 is in fact set aside. referring to the said order of the collector (appeals) dated 11th february 1991 mr. desai submitted that the said order did not in fact decide anything and it should be ignored. we were rather surprised to hear the said submission. it is an order passed by a quasi-judicial forum. from the order it appears that he has taken into consideration all the aspects of the matter. he has specifically not passed an order ordering refund as in his view the writ petition no. 4412 of 1988 was pending. obviously if the contention of the petitioners in the said petition was rejected, the assessable value would have gone up resulting in additional excess burden thus entitling the department to claim more from the petitioners and enabling it to a set off. that is the reason why the refund order was not passed by the collector (appeals) although he was satisfied with the petitioner's case that no unjust enrichment would result if the refund was granted. the department has not challenged the said order of the collector (appeals) and the same has thus become final. 12. section 11-b of the said act provides for a machinery for preventing, while granting any refund, any resultant unjust enrichment. no doubt sub-section (3) thereof starts with a non-obstante clause and is held to be retrospective. the petitioners before us were required in law to satisfy two tests. first was whether the said notification was available to them. this undoubtedly they have established and more over there is no quarrel qua this. secondly, they were required to establish that the refund if granted to them would not unjustly enrich them. for this they were required to satisfy the asstt. collector that they had borne the extra burden themselves. in other words, they had not passed on the burden to their customers. although they failed to so satisfy the asstt. collector, in appeal they have succeeded before the collector (appeals) who has in effect set aside the order of the asstt. collector. to us, it appears that the collector (appeals) has come to the conclusion that the burden has not been passed on to the others. in view thereof reliance placed by mr. desai on the two decisions of the supreme court in jain spinners ltd. (supra), and i.t.c. ltd. (supra) and two decisions of this court in excell chemicals pvt. ltd. (supra) and pfizer ltd. (supra) is not proper. as observed by us, in the case before us, the question of unjust enrichment has been gone into and the very purpose of section 11-b has been thus achieved. no affidavit in reply is filed by the department denying the assertion of the petitioners in the writ petition no. 1889 of 1990 that in most of the cases they had charged only the lesser duty and in case they had charged more, the excess amount so charged was returned to the dealers/customers. it would be unjust to again direct the petitioners to go through the entire procedure all over again they having succeeded before the collector (appeals). due weightage in law is required to be given to it. we cannot just ignore this order. any order passed by a competent forum having jurisdiction to do so, unless quashed or set aside, remains operative. it is true that no final direction has been given to the department to actually refund the amount. the reason for not doing it is obvious as discussed above. the fact remains that collector (appeals) has, after considering the entire material before him, given a clear finding in favour of the petitioners. which finding can neither be ignored or treated as non-est. with respect none of the authorities cited by mr. desai even suggests that irrespective of the fact that an assessee/applicant has established, and either the asstt. collector or the collector (appeals) in appeal is satisfied that no unjust enrichment would result if a refund is granted, the assessee has to be driven to a fresh application and the question is to be subjected to a fresh determination in view of the provisions of section 11-b as amended by amendment act of 1991. in our opinion, the amended provision would apply to all future or pending claims for refund and not to those claims which have been scrutinized and finally found by the authority competent to so decide as not resulting in unjust enrichment. 12a. in these circumstances, we are of the opinion that in view of the order passed by the collector of central excise (appeals) dated 11th february 1991, the matter stands concluded as the question of unjust enrichment has been already gone into as held by us. the petitioners are, therefore, entitled to refund as claimed. in view of the subsequent writ petition no. 1389 of 1990 having been preferred by the petitioner, the earlier writ petition no. 4153 of 1988 in fact would not survive. therefore, in writ petition no. 1389 of 1990 the following order :refund granted of rs. 52,80,500/- in the interim order passed in writ petition 4152 of 1988 is hereby confirmed. as the order dated 3-1-1990 has been already set aside by the collector (appeals), the only order which requires to be passed is of granting the petitioners refund of an amount of rs. 1,13,53,580/-. the amount to be paid within 12 weeks from today. in the event of the respondents failing to refund the amount ordered as above, the respondents to pay interest at the rate of 18% p.a. after 12 weeks from today. writ petition nos. 4152 of 1988 and 1389 of 1990 thus disposed of. no order as to costs. certified copy expedited.petition allowed.