AGK AGK AGK IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CENTRAL EXCISE APPLICATION NO.1 OF 2003 The Commissioner of central Excise, Pune - III ..Applicant. V/s. M/s.SMZS Chemicals Limited ..Respondent. Mr.P.S. Jetly with Mrs.S.V. Bharucha for the applicant. Mr.Madhur Baya for the respondent. CORAM : SMT.RANJANA DESAI & J.P. DEVADHAR, JJ. DATED : 2ND FEBRUARY, 2009. P.C. : 1. This application was admitted on the following substantial question of law : Whether on the facts and in the circumstances of the case the tribunal was right in law in holding that the draft order-in-original no.66/94 dated 29-04-1994 sanctioning the refund claim of Rs.29,73,049/- shall prevail over order-in-original no.28/95 dated 24-08-1995 passed after internal pre-audit also sanctioning the refund claim of Rs.29,73,049/- and crediting the same to the consumer welfare fund under section 11B (2) of the Central Excise Act, 1944 by invoking the principle of unjust enrichment as the assessee had prepared its invoices charging the higher rate of duty paid the same under protest and failed to establish that the disputed duty had not been passed on to any other person. 2. Although the learned counsel for the respondent has relied on the judgment of this Court in the case of Bombay Chemicals Limited V/s. Union Bombay Chemicals Limited V/s. Union Bombay Chemicals Limited V/s. Union of India [2006 (201) E.L.T. 167 (Bom.)] of India [2006 (201) E.L.T. 167 (Bom.)] of India [2006 (201) E.L.T. 167 (Bom.)], from the question raised in this application it is clear that the said judgment has no application to the facts of the present case. Whether a draft order can be treated as final order is a question of law, which requires to be answered by this Court. 3. In view of this, we allow the central excise application and direct the tribunal to send a statement of case raising the above question for the opinion of this Court. The statement of case may be forwarded as expeditiously as possible. 4. The application is accordingly disposed of. (Judge) (Judge)