WP(C) 4990/2004 BEFORE HON’BLE MR. JUSTICE HRISHIKESH ROY 1. Heard Ms. M Hazarika, learned senior counsel appearing for the petitione r. Also heard Mr. B Sarma, learned senior standing counsel for the Central Excis e Department appearing for the respondents. 2. The petitioner challenges the adjudication order dated 27th June, 2003 ( Annexure-A) passed by the Asstt. Commissioner, Central Excise, Tinsukia, whereby the claim for refund of the excise duty was rejected, by declaring that the con ditions specified in Clause (a) to (f) of Sub-Section 11(B) of the Central Excis e Act, 1944 (hereinafter referred to as ’the 1944 Act’) were not satisfied by th e claimant, or in the other words, the duty in question has not been passed on b y the assessee to the consumers of the manufactured goods, as stipulated under S ection 12(B) of the 1944 Act. Accordingly the refundable amount determined at Rs .66,29,144.00 (Rupees sixty six lakhs twenty nine thousands one hundred forty fo ur) only, for the period from 01.11.1965 to 16.3.1981, was ordered to be transfe rred to the Consumer Welfare Fund established under Section 12(C) read with Sect ion 11(B)(2) and Section 12(B) of the 1944 Act. 3. The petitioner Company manufactures plywood, block boards, etc. and clai med refund of Central Excise Duty paid on captive consumption of UF/PF Resin use d in the manufacture of final products between 01.11.1965 to 26.3.1981. The refu nd claim was initially rejected by the Assistant Commissioner by order dated 10t h June, 1992 and the refundable amount was credited to the Consumer Welfare Fund under Section 12(C) of the 1944 Act. Eventually on Appeal(s) filed by the asses see as well as by the Revenue, the CEGAT, EB, Calcutta by order dated 16th June, 1998 ordered sanction of the refund claim to the assessee. This was done on the basis of the law declared by the Bombay High Court in the case of Solar Pestici des (P) Ltd. vs. Union of India reported in (1992) 57 ELT 201. 4. The decisions of the Bombay High Court in Solar Pesticides (Supra) was r eversed subsequently by the Supreme Court in the case of Union of India vs. Sola r Pesticides Pvt. Ltd. reported in (2000) 2 SCC 705 where the Court held that th e principle of unjust enrichment would be applicable on raw materials captively consumed during the manufacture of the final product. 5. As the petitioner had also filed a writ petition i.e. C R No.2393/1999 f or enforcement of their refund claim, after having withdrawn the said writ petit ion they re-agitated their claim before the Central Excise Authorities. Accordin gly by the impugned order dated 27th June, 2003, it is declared that the claim i s not maintainable, as the assessee had failed to satisfy that the incidence of excise duty had not been passed on by the manufacturer, to any other person. 6. The Constitution Bench of the Apex Court in the case of Mafatlal Industr ies Limited vs. Union of India reported in (1997) 5 SCC 536 has held that Sectio n 11(B) of the 1944 Act would apply to all proceedings where the refund has not been finally made and manufacturer claiming refund must produce documentary and other evidence, to establish that the incidence of duty, refund of which is clai med, has not been passed to any other person. However the requirement of enclosi ng documents referred to in Section 12(A) was declared to be mandatory only when , the claim pertains to a period, subsequent to the statutory amendment brought about with effect from 20th September, 1991. 7.1 It is contended by the petitioner that no opportunity was afforded to th e claimant to establish through documentary and other evidence that the incidenc e of duty was not passed to any other person. The learned counsel submits that s ince the transaction is for the period between 1965 to 1981, satisfying the requ irement of Section 12(A) can’t be insisted for considering the petitioner’s refu nd application. 7.2 It is further contended by Ms. Hazarika, learned senior counsel that the direction for refund ordered by the CEGAT, EB, Calcutta on 16th June, 1998 was on the basis of the law declared by the Bombay High Court in Solar Pesticides (S upra) and in view of the reversal of the said decision of the Bombay High Court by the Apex Court on Appeal, the Revenue ought to have provided a reasonable opp ortunity to the applicant to establish through documentary and other evidence th at, the incidence of duty was not passed on to any other person. 8.1 Mr. B Sarma, learned standing counsel representing the Central Excise Au thorities submits that the petitioner has been declared to be a sick company and a proceeding under the Sick Industrial Companies (Special Provisions) Act, 1985 (hereinafter referred to as ’the Sick Companies Act’) is presently pending and in view of the provisions of Section 22(1), the present case is not maintainable . 8.2 Secondly it is contended by the learned counsel that against the order p assed by the Assistant Commissioner, Central Excise, the petitioner could have a vailed of the remedy of statutory appeal under Chapter VI(A) of the 1944 Act and the writ jurisdiction cannot be invoked as alternate statutory remedy is availa ble to the petitioner. 8.3 The learned counsel also submits that the refund claim pertains to very old transaction between 1965 to 1981 and the matter cannot be permitted to be li nger on indefinitely. Mr. Sarma further submits that if any opportunity to adduc e evidence is to be afforded, the same must be made time bound, so that the matt er reaches a logical end. 9. The provisions of Section 22(1) of the Sick Companies Act places restric tion on initiating a winding up proceeding against a Sick Company. But the said Section 22(1) doesn’t stop a sick company to proceed for recovery of its dues. A ccordingly I reject the objection of the respondents on the basis of the provisi ons of Section 22(1) of the Sick Companies Act. 10. In so far as the alternate remedy of Appeal is concerned, it has been de clared by the Assistant Commissioner, interalia, that the petitioner failed to s atisfy as required under Section 12(B) of the 1944 Act, that the duty had not be en passed on to any other person/consumer. This view is contrary to the law decl ared by the Supreme Court in Mafatlal Industries Limited (Supra) as the transact ion in question, was of a period prior to insertion of Section 12(A) brought in force w.e.f. 20th September, 1991 in the 1944 Act. Accordingly the Adjudicating Authority erred in invoking Section 12(A) of the Act in the present case. Furthe rmore considering that the writ petition is pending in this Court since last 7 y ears, it may not be justified now to relegate the petitioner to the Appellate re medy under Chapter VI A of the 1944 Act. 11. Considering that the petitioner is praying for a single opportunity to e stablish that the incidence of duty has not been passed on to the consumers, I a m of the view that interest of justice would be served if the petitioner is gran ted a limited opportunity to establish through appropriate evidence, that they a re not going to be unjustly enriched, by getting refund of duty. 12. Accordingly a time bound opportunity is granted to the petitioner to est ablish before the competent Authority through requisite evidence that the incide nce of duty has not been passed on, to any other person, by the manufacturer. 13. As this matter is pending since last many years, the petitioner is grant ed 2 moths time until 9th May, 2011 to satisfy the Authorities under Section 11( B) of the 1944 Act that, they are entitled to refund of the excise duty for the period from 1.11.1965 to 16.3.1981. If relevant evidence is produced by the peti tioner by 9th May, 2011, the same may be considered by the competent Authority a nd an appropriate decision be taken thereafter. 14. The petition stands disposed of with the above order without any order o f cost.