1 mpt IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO. 3212 OF 1991 Shah Paper Company .. Petitioner versus Union of India & Anr. .. Respondents ... Ms.Shefali Salian with Mr.Anil Belani for the petitioner Mr. P.S. Jetly with Mr.Rohit B. Pardeshi for respondents. CORAM : F. I. REBELLO AND D.G. KARNIK, JJ DATED : 16th September 2009 P.C:- 1. The petitioner in the instant case had approached this court to direct the respondents to refund, reimburse and pay to the petitioner the amount of extra duty collected in terms of CEGAT order dated 30th October 1990. CEGAT by that order had taken the view that the goods are entitled to the benefit of notification no.341/76-Cus. Dated 2.8.1976 2. The petitioner thereafter applied for refund of the duty already paid. This is evidenced by the correspondence dated 15th April 1991 and 16th April 2 1991. In the communication of 15th April 1991, petitioners were fully aware that in order to get the refund,they had to fill in the “unjust enrichment form”. The contention of the petitioner was that as they are traders and as such there is no need to comply with the same. 3. At the hearing of this petition, on behalf of the petitioners, learned counsel sought to rely on the judgment in the case of Triveni Chemicals Ltd. Vs. Union of India 2007 (207) E.L.T (S.C.). to contend that once the authorities passed an order of refund, then the provisions of section 11B of the Central Excise Act would not be attracted. 4. We have heard learned counsel for the parties. In the instant case, admittedly, though CEGAT had held in favour of the petitioners, there was no order passed by the respondents on the application for refund. The prayer clause would show the relief sought for is to refund the duty in terms of CEGAT order dated 13th October 1990. 5. The law as now laid down by the Supreme Court in Sahakari Khand Udyog Mandal Ltd. Vs. Commissioner of Central Excise and Customs, 2005 (181) E.L.T 328(SC) is that the doctrine of ‘unjust enrichment’ arises where retention of benefit is considered to be contrary to justice or against equity and that is based on the doctrine of restitution. Section 11B of the Central Excise Act 1944 merely recognizes that doctrine. In other words, any 3 person now seeking a refund even if an order of the Tribunal is in their favour will have to satisfy the test of unjust enrichment. The judgment in Triveni Chemicals Ltd. (supra) would not apply on the facts of the present case as no order of refund had been made by the authorities. In the light of that, the following order:- 6. The respondents are directed to dispose of the pending application for refund according to law. The entire exercise to be completed not later than three months from today. Rule made absolute accordingly. (D.G. KARNIK, J) (F.I. REBELLO, J)