COMMISSIONER OF CENTRAL EXCISE, TIRUCHIRAPALLI versus M/S. DALMIA CEMENT(BHARAT) LTD.

Citation: [2015] 9 S.C.R. 257 · Decided: 02-09-2015 · Supreme Court of India · Bench: A.K. SIKRI · Disposal: Dismissed

Judgment (excerpt)

[2015] 9 S.C.R. 257 
COMMISSIONER OF CENTRAL EXCISE, 
A 
TIRUCHIRAPALLI 
v. 
M/S. DALMIACEMENT(BHARAT) LTD. 
(Civil Appeal No. 3600 of 2006) 
B 
SEPTEMBER 02, 2015 
[A. K. SIKRI AND R. F. NARIMAN, JJ.] 
Central Excise Act, 1944-s. 118 (as amended)-Claim c 
for refund of duty - Applicability of s. 11 B, to cases where 
though an order has been passed directing refund, 
implementation of the orderis pending - Held: If the order 
for refund on such an application had already been passed 
before coming into force the amended provision and no D 
application was pending at the commencement of the Central 
Excise and Customs Laws (Amendment) Act, 1991 before 
the Assistant Commissioner, the question of applying the said 
proviso and going into the issue as to whether incidence of 
such duty had been passed by the applicant to any other E 
person or not would not arise - Thereafter, order passed on 
the application is only to be implemented by giving the refund 
as per that order- The Officer, at the time of carrying out the 
orders for refund, which have already been passed, cannot 
F 
/.le invested with the powers to go into the question of unjust 
enrichment by invoking the proviso to sub-section (1) of 
s. 11 B - Doctrine of unjust enrichment'- Central Excise and 
Customs Laws (Amendment) Act, 1991. 
Dismissing the appeal, the Court 
G 
.. 
HELD: 1.1 Proviso to sub-section (1) of Section 11 B 
of the Central Excise Act, 1944, as amended, would be 
applicable in a situation where an application for refund 
made before the said amendment was still pending at H 
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257 
258 
SUPREME COURT REPORTS 
[2015] 9 S.C.R. 
A the time when the provislons of s. 118 were amended. 
Once it is found that no such application was pending 
and the orders on the said application had already been 
passed, the proviso ceases to have any application. 
Section 118 relates to claim for refund of duty and the 
B procedure for such a refund is stipulated in this Section. 
As per sub-section (1) thereof, any person claiming 
refund of any duty of excise has to move an application 
for refund of such duty to the Assistant Commissioner 
of Central Excise. Once such an application is made, the 
C same is to be considered in accordance with this 
provision. Under the unamended provision, the Assistant 
Commissioner was not required to go into the question 
as to whether incidence of such duty had been passed 
D on by the applicant claiming refund to any other person 
or not. However, if the application was not decided till 
the time amendment was incorporated in the year 1991, 
as per the proviso, while dealing with such an application 
for refund, the Assistant Commissioner is still 
E empowered to go into this question even when the 
application was filed before the commencement of the 
amended provision. This situation would prevail only 
when there is a pending application before the Assistant 
Commissioner of Central Excise, which is yet to be 
F decided. If the order for refund on such an application 
had already been passed before coming into force the 
amended provision and no application was pending at 
the commencement of the Central Excise and Customs 
Laws (Amendment) Act, 1991 before the Assistant 
G Commissioner and, therefore, question of applying the 
said proviso and going into the issue as to whether 
incidence of such duty had been passed by the applicant 
to any other person or not would not arise. Thereafter, 
order passed on the application is only to be 
H implemented by giving the refund as per that order. By 
.. 
-
-
COMMNR. OF CENTRAL EXCISE, TIRUCHIRAPALLI v. 
259 
DALMIA CEMENT (BHARAT) LTD. 
no stretch of imagination, the Officer, at the time of A 
carrying out the orders for refund, which have already 
been passed, can be invested with the powers to go into 
the question of unjust enrichment by invoking the 
proviso to sub-section (1) of Section 11 B. It clearly 
follows that before the amendment of Section 11 B of the B 
Act, principle of unjust enrichment was no~ incorporated 
under the unamended provision. In fact that was 
precisely the reason for amending the provision so that 
this doctrine of "unjust enrichment" is incorporated, viz., 
to take care of the mischief that was prevailing under C 
the unamended provision which was removed by making 
amendment, popularly known as Haydon's Mischief 
Rule. [Paras 14, 15, 16] [286-C-H; 287-A-F] 
1.2 In the instant case, the order on the refund D 
application of the respondent 

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