COMMISSIONER OF CENTRAL EXCISE,  TIRUCHIRAPALLI versus M/S. DALMIA CEMENT(BHARAT) LTD.
[2015] 9 S.C.R. 257, Supreme Court of India, 2015
Outcome: Dismissed (Dismissed)
Segment: Issues
[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 
-
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 had been passed on 
06.06.1989, which was much before the amended 
provision came into operation. In fact, even after the order 
of refund was passed, the appellant had not refunded 
the amount and it is in these circumstances that writ E 
petition was filed in the High Court tor initiation of 
contempt proceedings against the defaulting officers. In 
such proceedings, the High Court had passed the order 
dated 18.07.1995. In this order, no doubt, the Court F 
observed that the Assistant Commissioner would go into 
the question if the respondent should be
granted the 
refund in spite of Section 11 B of the Act. However, merely 
because of such observations, it cannot be said that the 
Assistant Commissioner was entitled to look into the G 
issue of unjust enrichment when if, otherwise, he had 
no jurisdiction .to do so in the facts of the instant case. 
Such observations were given in view of the statement 
of the counsel for the Government who brought to the 
notice of the Court the amended provisions contained H
260 
SUPREME COURT REPORTS 
[2015] 9 S.C.R. 
A in sub-section (3) of Section 118 of the Act. The High 
Court did not go into the issue as to whether such a 
course of action was permissible or not. Further, the 
interpretation that is to be accorded to the amended 
provision had not been decided by this Court till. that time 
B and the law on this issue came to be settled ir) the year 
1997 only when the judgment in Mafatlal lndustf;es Ltd. 
was pronounced by this Court. Thus, when the Order of 
the Assistant Commissioner was challenged and the 
matter came before the tribunal, the tribunal was duty 
C bound to apply the law laid down in Mafatla/ Industries 
Ltd., which it did. Similar exercise is done by the High 
Court in the impugned judgment. Thus, the view taken 
by the High Court is in consonance with the law laid 
D down by this Court in Mafat/a/'s case. There is no scope 
to interfere with the decision of the High Court. [Paras 
16, 17, 18) (287-F-G; 288-A-F] 
E 
F 
G 
Mafatlal Industries Ltd. and Ors. v. Union of India and 
Others 1996 (10) Suppl. SCR 585: (1997) 5 SCC 536 
-followed. 
Case Law Reference 
1996 (10) Suppl. SCR 585 
followed. 
Para 17 
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 
3600 of2006 
From the Judgment and Order dated 08.12.2005 of the 
High Court of Delhi at Delhi in CEAR No. 3/2001. 
Guru Krishna Kumar, Rupesh Kumar, Awadhesh Kumar 
Singh, Ritesh Kumar, Jitin Singhal, B. Krishna Prasad for the 
• 
Appellant. 
H 
K. V. Viswanathan, Ramesh
Singh, Sabyasachi Patra,
COMMNR. OF CENTRAL EXCISE, TIRUCHIRAPALLI v. 
261 
DALMIACEMENT(BHARAT) LTD. 
Abhishek Kaushik, Sanjeev K. Kapoor, Ashwini Chawla, 
A 
Khaitan & Co. for the Respondent. 
The Judgment of the Court was delivered by 
A. K. SIKRI, J. 1) On an application under Section 35G(3) 
8 
of the Central Excise Act, 1944 (hereinafter referred to as the 
'Act'), the Customs Excise and Gold (Control) Appellate 
Tribunal (hereinafter referred to as the 'CEGAT') referred the 
following question to the High Court of Delhi for its opinion :-
"Whether Section 11 B of the Central Excise Act, as 
amended, applies to cases where though an order has 
been passed directing refund, implementation of the 
order is pending?" 
c 
2) The High Court has answered the aforesaid question D 
in favour of assessee holding that since the proceedings under 
the old Section 11 B oftheAct had attained finality, the amended 
provision of Section 11 B of the Act, in particular, proviso to 
sub-section (1) shall not apply. In other words, the principle of 
'unjust enrichment' which was introduced by way of amendment 
E 
of Section 11 B in the year 1991 shall not be attracted in the 
instant case as the proceedings under the unamended Section 
stood finalised with the direction in the application filed under 
unamended Section 11 B of the Act to refund the excise duty F 
that was paid by the respondent/assessee. To put it pithily, 
the High Court has held that merely because implementation 
of the aforesaid order was
pending, in the sense that direction 
to refund the amount had not been carried out, the authority 
could not go into the question of unjust enrichment by invoking G 
the proviso to sub-section ( 1) of Section 11 B. of the Act that 
had been introduced by that time by way of amendment in 
Section 11 B of the Act. Therefore, it was not open to the 
concerned officer, who was only supposed to carry out the 
implementation of the order, to go into the question as to H
262 
SUPREME COURT REPORTS 
[2015] 9 S.C.R. 
A whether there was any unjust enrichment on the part of the 
assessee or not. In coming to this conclusion, the High Court 
has extensively referred to a 9-Judge Bench of this Court in 
the case of Mafatlal Industries Ltd. and Others v. Union of 
India and Others1. 
B 
3) It is not disputed before us that the law laid down in the 
aforesaid judgment would be applicable. However, the 
appellant contends that there is a small window left open in 
the said judgment which would cover the situation that has 
C arisen in the present case. As per the case set up by the 
appellant, even where order is yet to be implemented, though 
passed under the unamended provision, at this stage of 
implementation as well the question of unjust enrichment can 
D 
be gone into by the concerned authority. 
4) We may point out at this stage itself that Section 11 B, 
as it existed prior to its amendment in the year 1991, did not 
contain any provision of unjust enrichment. Thus, if the 
assessee was entitled to refund of duty under the Act, it could 
E make an application for such a refund to the Assistant Collector 
of Central Excise before the expiry of six months from the refund 
date and the procedure how such application is to be dealt 
with was stipulated in the said provision. This Section was 
. amended with effect from 20.09.1991 by Central Excise and 
F 
Customs Laws (Amendment) Act, 1991. Under the amended 
provision, while considering the
application for refund, the 
Assistant Collector of Central Excise is empowered to go into 
the question as to whether incidence of such duty has been 
passed on by the person claiming refund to any other person. 
G If the claimant has passed on the incidence of excise duty to 
other person then the application for refund can be rejected 
· on the ground that" it would amount to unjust enrichment to that 
· person who is not out of pocket even when the excise duty 
H 
1· (1997) s sec 536
COMMNR. OF CENTRAL EXCISE, TIRUCHIRAPALLI v. 
263 
DALMIACEMENT (BHARAT) LTD. [A. K. SIKRI, J.] 
was paid in excess etc. Proviso to this sub-section (1) further A 
provides that even when application for refund was filed before 
the amendment of this Section and still pending, it shall be 
deemed that such an application made under amended sub-
section ( 1) of Section 11 B of the Act and is to be dealt with in 
accordance with the provisions of sub-section (2), substituted 
B 
by the amendment. Thus, the applications even filed under 
the unamended Act, if not disposed of and still pending, are to 
be treated as filed under the amended Section 11 B and the 
consequence thereof is that even in respect of such 
applications doctrine of "unjust enrichment" would be C 
applicable. In this scenario, when an application was not 
pending, in the sense that orders thereon had already been 
passed directing refund but the amount had not been refunded 
so far, we have to determine as to whether such a situation D 
has also to be dealt with under the amended section thereby 
bringing into operation the doctrine of "unjust enrichment"? As 
mentioned above, the High Court has answered this question 
in the negative and this Court is called upon to decide the 
veracity of the said view taken by the High Court in the instant E 
appeal. 
5) The facts which need to be noted for the purposes of 
this appeal do not need a large canvass and are recapitulated 
in brief, as under: 
F 
6) The
period involved for which the respondent wanted 
refund of the excise duty paid by it is 1970-1978. It may be 
mentioned that there was a dispute regarding the assessable 
value of cement cleared by the assessee during the aforesaid 
period, when excise duty of cement was ad valorem. The G 
dispute related to freight involved in the dispatch of the cement 
to various destinations. The Department had included the cost 
of freight as well while determining the assessable value in 
terms of Section 4 of the Central Excise and Salt Act, 1944 H 
(hereinafter referred to as the 'Act'). It was decided in favour
264 
SUPREME COURT REPORTS 
[2015] 9 S.C.R. 
A 
of the assessee vide order dated 06.06.1989 passed by the . 
CEGAT. In spite of this decision, amount was not refunded_. 
This prompted respondent to file Civil Writ No. 3225 of.1991 
in the High Court of Delhi seeking writ, order or direction for 
initiating contempt of court proceedings against the Collector 
B of Central Excise, Tiruchirapalli and Assistant Collector of 
Central Excise, Tiruchirapalli for not granting the refund despite 
the order of the CEGAT. The said writ petition was disposed 
of on 18.07.1995. Taking note of the statement of counsel for 
both the parties that a date may be fixed before the Collector/ 
C Assistant Collector to go into the question if the appellant 
should be granted refund in spite of Section 11 B of the Act, 
direction was given to appear before the Collector/Assistant 
Collector on 22.09.1995 and the writ petition was disposed 
D of. Pursuant to the said direction, hearing was granted by the 
Assistant Commissioner who passed orders dated 
28.03.1996 holding that assessee was not eligible to get the 
refund as per amended provisions of Section 11 B of the Act 
and directed that this amount be credited to the Consumer 
E Welfare Fund established under Section 12C of the Act. The 
reason for rejecting the claim of the assessee was that the 
case of the respond~nt fell within the four walls of the concept 
of "unjust enrichment". Feeling aggrieved by this order, appeal 
was filed before
the Commissioner of Customs and Central 
F Excise (Appeal) which was dismissed on 20.12.1996. Further, 
appeal was preferred before the CEGAT and in this attempt 
the assessee triumphed inasmuch as Tribunal decided the 
case in favour of assessee holding that since no proceedings 
were pending before the Assistant Commissioner as far as 
G application for refund is concerned and it was only the 
execution of the order of refund that was passed much prior to 
1991, amended provision of Section 11 B would not be 
attracted. The appellant filed rectification application which was 
dismissed by the Tribunal on 20.02.2002. Thereafter, appellant 
H filed reference application before the High Court of Delhi in 
terms of 35G(3) of the Act raising the question of law which
COMMNR. OF CENTRAL EXCISE, TIRlJCHIRAPALLI v. 
265 
DALMIACEMENT(BHARAT) LTD. [A. K. SIKRI, J.] 
has already been reproduced in the earlier part of this A 
judgment. Again, as pointed out above, the High Court has 
answered this question in favour of assessee, recording the 
following findings: 
· 
"(a) It has been held that there are no merits in this 
reference, as the question involved is clearly settled by 
the 9-Judge Bench decision of this Hon'ble Court in the 
case of Mafatlal Industries Ltd. (supra) wherein this 
Hon'ble Court held that if an application for refund has 
been disposed off, and the order had become final before 
the 1991 amendment to Section 11 B came into force, 
the principles of unjust enrichment will not apply. 
(b) Section 11-B, after the 1991 amendment, stated that 
the party applying for refund had to establish that the 
incidence of such duty had not been passed on by him to 
any other person. It follows, therefore, that Parliament did 
not apply the principles of unjust enrichment to cases 
covered by the unamended Section11 Band it was the 
reason that the amendment was made in Section 11-B 
in 1991." 
B 
c 
D 
E 
7) On the basis of what is pointed out above, it is clear 
that the exercise to be undertaken is to find out the ratio laid 
down in Mafat/a/ Industries Ltd. (supra) in the given situation. 
Before we advert to the same, we deem it appropriate to refer F 
to, at this stage, unamended and amended provisions of 
Section 11B. 
"Section
118: Claim for refund of duty (1)Any person 
·claiming refund of any duty of excise may make an 
application for refund of such duty to the Assistant 
Collector of Central Excise before the expiry of six months 
from the relevant date. 
Provided that the limitation of six months shall not apply 
where any duty has been paid under protest. 
G 
H
266 
A 
8 
c 
D 
E 
F 
G 
H 
SUPREME COURT REPORTS 
[2015] 9 S.C.R. 
(2) If on receipt of any such application, the Assistant 
Collector of Central Excise is satisfied that the whole or 
any part of the duty of excise paid by the applicant should 
be refunded to him, he may make an order accordingly. 
(3) Where as a result of any order passed in appeal or 
revision under this Act refund of any duty of excise 
becomes due to any persons the Assistant Collector of 
Central Excise may refund the amount to such person 
without his having to make any claim in that behalf. 
( 4) Save as otherwise provided by or under this act, no 
claim for refund of any duty of excise shall be entertained. 
(5) Notwithstanding anything contained in any other law, 
the provisions of this Section shall also apply to a claim 
for refund of any amount collected as duty of excise made 
on the ground that the goods in respect of which such 
amount was collected were no excisable or were entitled 
to exemption from duty and no court shall have any 
jurisdiction in respect of such claim." 
8) After 1991 amendment, the material part of Section 118 
reads as follows: 
"118. Claim for refund of duty and interest, if any, paid on 
such duty.-(1) Any person claiming refund of any duty of 
excise and interest, if any, paid on such duty may make 
an application for refund of such [duty and interest, if any, 
paid on such duty to the Assistant Commissioner of 
Cent~al Excise or Deputy Commissioner of Central
Excise before the expiry of one year from the relevant 
date in such form and manner as may be prescribed and 
the application shall be accompanied by such 
documentary or other evidence (including the documents 
referred to in section 12A) as the applicant may furnish 
to establish that the amount of duty of excise and interest,
COMMNR. OF CENTRAL EXCISE, TIRUCHIRAPALLI v. 
DALMIACEMENT (BHARAT) LTD. [A. K. SIKRI, J.] 
if any, paid on such duty in relation to which such refund 
is claimed was collected from, or paid by, him and the 
incidence of such duty and interest, if any, paid on such 
duty had not been passed on by him to any other person: 
Provided that where an After 1991 amendment, the 
material part of Section 11 B reads as follows:application 
for refund has been made before the commencement of 
the Central Excises and Customs Laws (Amendment) 
Act, 1991 (40of1991 ), such application shall be deemed 
to have been made under this sub-section as amended 
by the said Act and the same shall be dealt with in 
accordance with the provisions of sub-section (2) as 
substituted by that Act: 
Provided further that the limitation of one year shall not 
apply where any duty and interest, if any, paid on such 
· duty has been paid under protest. 
.. 
(2) If, on receipt of any such application, the Assistant 
Commissioner of Central Excise or Deputy 
Commissioner of Central Excise is satisfied that the 
whole or any part of the duty of excise and interest, if any, 
paid on such duty paid by the applicant is refundable, he 
may make an order accordingly and the amount so 
determined shall be credited to the Fund: 
Provided that the amount of [duty of excise and interest, 
if any, paid on such duty as determined by the Assistant 
Commissioner of Central Excise or Deputy 
Commissioner of Central Excise
under the foregoing 
provisions of this sub-section shall, instead of being 
credited to the Fund, be paid to the applicant, if such 
amount is relatable to-
( a) rebate of duty of excise on excisable goods exported 
out of India or on excisable materials used in the 
manufacture of goods which are exported out of India; 
267 
A 
B 
c 
D 
E 
F 
G 
H
268 
A 
B 
c 
D 
E 
F 
G 
H 
SUPREME COURT REPORTS 
[2015] 9 S.C.R. 
(b) unspent advance deposits lying in balance in the 
applicant's account current maintained with the 
Commissioner of Central Excise or Commissioner of 
Central Excise; 
(c) refund of credit of duty paid on excisable goods used 
as inputs in accordance with the rules made, or any 
notification issued.After 1991 amendment, the material 
part of Section 11 B reads as follows: under this Act; 
(d) the duty of excise and interest, if any, paid on such 
duty paid by the manufacturer, if he had not passed on 
the incidence of such duty and interest, if any, paid on 
such duty to any other person; 
(e) the duty of excise and interest, if any, paid on such 
duty borne by the buyer, if he had not passed on the 
incidence of such duty and interest, if any, paid on such 
duty to any other person; 
•• 
(f) the duty of excise and interest, if any, paid on such 
duty borne by any other such class of applicants as the 
Central Government may, by notification in the Official 
Gazette, specify: 
Provided further that no notification under clause (f) of 
the first proviso shall be issued unless in the opinion of 
the Central Government the incidence of duty and interest, 
if any, paid on such duty has not been passed on by the 
persons concerned to any other person. 
(3) Notwithstanding anything to the contrary contained in 
any judgment, decree, order or direction of the Appellate 
Tribunal or any Court in any other
provision of this Act or 
the rules made thereunder or any other law for the time 
being in force, no refund shall be made except as 
provided in sub-section (2).
COMMNR. OF CENTRAL EXCISE, TIRUCHIRAPALLI v. 
DALMIACEMENT (BHARAT) LTD. [A. K. SIKRI, J.] 
(4) Every notification under clause (f) of the first proviso 
to sub-section (2) shall be laid before each House of 
Parliament, if it is sitting, as soon as may be after the 
issue of the notification, and, if it is not sitting, within seven 
days of its reassembly, and the Central Government shall 
seek the approval of Parliament to the notification by a 
resolution moved within a period of fifteen days beginning 
with the day on which the notification is so laid before the 
House of the People and if Parliament makes any 
modification in the notification or directs that the 
notification should cease to have effect, the notification 
shall thereafter have effect only in such modified form or 
be of no effect, as the case may be, but without prejudice 
to the validity of anything previously done thereunder. 
(5) For the removal of doubts, it is hereby declared that 
any notification issued under clause (f) of the first proviso 
·to sub-section (2), including any such notification 
approved or modified under sub-section (4), may be 
rescinded by the Central Government at·any time by 
notification in the Official Gazette. 
Explanation.-Forthe purposes of this section,-
(A) "refund" includes rebate of duty of excise on excisable 
269 
A 
B 
c 
D 
E 
goods exported out of India or on excisable materials 
F 
used in the manufacture of goods which are exported 
out of India; 
(B)
"relevant date" means,-
( a) in the case of goods exported out of India where a 
refund of excise duty paid is available in respect of the 
goods themselves or, as the case may be, the excisable 
materials used in the manufacture of such goods,-
G 
H
270 
SUPREME COURT REPORTS 
[2015] 9 S.C.R. 
A 
(i) if the goods are exported by sea or air, the date on 
which the ship or the aircraft in which such goods are 
loaded, leaves India, or 
(ii) ifthe goods are exported by land, the date on Which 
B 
such goods pass the frontier, or 
"' 
c 
D 
E 
F 
G 
H 
(iii) if the goods are exported by post, the date of dispatch 
of goods by the Post Office concerned to a place outside 
India; 
(b) in the case of goods returned for being remade, 
refined, reconditioned, or subjected to any other similar 
process, in any factory, the date of entry into the factory 
forthe purposes aforesaid; 
(c) in the case of goods to which banderols are required 
to be affixed if removed for home consumption but not 
so required when exported outside India, if returned to a 
factory after having been removed from such factory for 
export out of India, the date of entry into the factory; 
(d) in a case where a manufacturer is required to pay a 
sum, for a certain period, on the basis of the rate fixed by 
the Central Government by notification in the Official 
Gazette in full discharge of his liability for the duty leviable 
on his production of certain goods, if after the 
manufacturer has made the payment on the basis of such 
rate for any period but before the expiry of that period 
such rate is reduced, the date of such reduction;. 
(e) in the case of a person, other than the manufacturer, 
the date of purchase of the goods by such person; 
(ea) in
the case of goods which are exempt from payment 
of duty by a special order issued under sub-section (2) 
of section 5A, the date of issue of such order;
COMMNR. OF CENTRAL EXCISE, TIRUCHIRAPALLI v. 
271 
DALMIACEMENT (BHARAT) LTD. [A. K. SIKRI, J.] 
(eb) in case where duty of excise is paid provisionally 
A 
under this Act or the rules made thereunder, the date of 
adjustment of duty after the final assessment thereof; 
(ec) in case where the duty becomes refundable as a 
consequence of judgment, decree, order or direction of 
B 
appellate authority, Appellate Tribunal or any court, the 
date of such judgment, decree, order or direction; 
(f) in any other case, the date of payment of duty." 
f 
9) We have already narrated the facts and events in the c 
instant case in detail above. However, it is pertinent to keep in 
mind that applications for refund of excise which were preferred 
by the assessee had already been allowed finally by the orders 
of CEGAT dated 01.06.1989 and 06.06.1989. This obviously D 
happened before the amendment in the Section in the year 
1991. At the same time, the refund had not been actually paid 
to the assessee till 1991 when the provisions of Section 11 B 
came to be amended. We now advert to the decision in the 
case of Mafat/al Industries Ltd. (supra). 
E 
10) It is a nine Judge Bench decision. Majority opinion 
was delivered by B.P. Jeevan Reddy, J. for himself and on. 
behalf offour other Judges. K.S. Paripoornan, J. and S.C.Sen, 
•• 
J. wrote their separate opinions. Hansaria, J. agreed with the F 
conclusions and reasoning of Paripoornan, J. However, insofar 
as issue at hand is concerned,
they concurred with the majority 
opinion rendered by B.P. Jeevan Reddy, J. Thus, eight out of 
nine Judges have taken the same view. A.M. Ahmadi, the then 
Chief Justice, was the only dissenting Judge, who took contrary G 
view on this particular issue. With this background in mind, 
we reproduce the following relevant portions from the opinion 
of B.P. Jeeven Reddy, J.: 
H
272 
SUPREME COURT Rl::PORTS 
[2015] 9 S.C.R. 
A 
"57. The first decision of this Court to consider the 
amended Section 11-8 is in Union of India v. Jain 
Spinners Ltd(1992) 4 SCC 389 The validity of the 1991 
(Amendment) Act was, however, neither raised nor 
considered by the court. The impugned orders of the High 
8 
Court, made before the coming into force of the 1991 
(Amendment) Act, directing refund of the excess duty 
collected to the manufacturers, this Court held, would 
defeat the provisions of amended Section 11-8 which 
c 
had come into force during the pendency of the refund 
proceedings. The Court held that so long as the refund 
' 
proceedings are pending, the amended provisions get 
attracted and disentitle the manufacturer-payer from 
claiming any refund contrary to the said provisions. In 
D 
other words, the contention of the manufacturers that the 
amended Section 11-8 applies only to claims of refund 
arising after the coming into force of the said Amendment 
Act was rejected. 
E 
96. There is yet another circumstance: Section 12-8 does 
not create anew presumption unknown till then; it merely 
gives. statutory shape to an existing situation, as 
explained herein before. At the most, it can be said that 
·there were two views on the subject and Section 12-8 
F 
affirms one of them. Even without Section 12-8, the true 
position is the same, as held by us in the earlier part of 
... 
this judgment. The obligation to prove that duty has not 
been passed on
to another person is always there as a 
precondition to claim of refund. It cannot also be said 
G 
that by giving retrospective effect to Section 11-8, any 
vested rights or substantive rights are being taken away. 
The deprivation, if at all, is not real. The manufacturer 
has already collected the duty from his purchaser and 
has thus reimbursed itself. By applying for refund yet, he 
H 
is trying to reap a windfall; deprivatio~ of that cannot be
COMMNR. OF CENTRAL EXCISE, TIRUCHIRAPALLI v. 
273 
DALMIACEMENT (BHARAT) LTD. [A. K. SIKRI, J.] 
said to be real or substantial prejudice or loss. A 
A 
manufacturer had no vested legal right to refund even 
when he had passed on the burden of duty to others. No 
law conferred such a right in him -
not Article 265, nor 
Section 11-B. It was only on account of an incorrect view 
of law taken in Kanhaiya Lal 1959 SCR 1350 : AIR 1959 
B 
SC 135: (1958) 9 STC 747 and that cannot be treated 
as a vested legal right. Correction of judicial error does 
not amount to deprivation of vested/substantive ri_ghts, 
even though a person may be deprived of an _c 
unwarran_ted advantage he had under the overruled 
decision. In cases, where the burden is not passed on, 
there is no prejudice; he can always get the refund. 
97. There is yet another circumstance: Section 12-B does 
not create a new presumption unknown till then; it merely 
D 
gives statutory shape to an existing situation, as 
explained hereinbefore. At the most, it can be said that 
there were two views on the subject and Section 12-B 
affirms one of them. Even without Section 12-B, the true 
E 
.. 
position is the same, as held by as in the earlier part of 
this judgment. The obligation to prove that duty has not 
been passed on to another person is always there as a 
precondition to claim of refund. It cannot also be said 
that by giving retrospective effect to Section 11-B, any 
F 
vested rights or substantive rights are
being taken away. 
The deprivation, if at all, is not real. The manufacturer 
has already collected the duty from his purchaser and 
has thus reimbursed itself. By applying for refund yet, he 
is trying to reap a windfall; deprivation of that cannot be 
G 
said to be real or substantial prejudice or loss. A 
• 
manufacturer had no vested legal right to refund even 
when he had passed on the burden of duty to others. No 
law conferred such a right in him -
not Article 265, nor 
__. 
Section 11-B. It was only on account of an incorrect view 
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A. 
of law taken in Kanhaiya Lal 1959 SCR 1350 : AIR 1959 
-.
SC 135: (1958) 9 STC 747 and that cannot be treated 
as a vested legal right. Correction of judicial error does 
not amount to deprivation of vested/substantive rights, 
even though a person may be deprived of an 
B 
unwarranted advantage he had under the overruled 
decision. In cases, where the burden· is not passed on, 
there is no prejudice; he can always get the refund. 
98. A major attack is mounted by the learned counsel for 
c 
petitioners-appellants on Section 11-B and its allied 
provisions on the ground that real purpose behind them 
was not to benefit the consumers by refusing refund to 
manufacturers (on the ground of passing on the burden) 
but only to enable the Government to retain the illegally 
D 
collected taxes. It is suggested that the creation of the 
Consumer Welfare Fund is a mere pretence and not an 
honest exercise. By reading the Rules framed under 
Section 12-D, it is pointed out, even a consumer, who 
E 
has really borne the burden of tax and is in a position to 
establish that fact, is yet not entitled to apply for refund of 
the duty since the Rules do not provide for such a situation. 
The Rules contemplate only grants being made to 
· Consumer Welfare Societies. Even in the matter of 
F 
making grants, it is submitted, the Rules are so framed 
as to make it highly difficult for any consumer organisation 
to get the grant. There is no
provision in the Act, Shri 
Nariman submitted, to locate the person really entitled to 
refund and to make over the money to him. "We expect a 
G 
sensitive Government not to bluff but to hand back the 
amounts to those entitled thereto'', intoned Shri Nariman. 
It is a colourable device -
declaimed Shri Sorabjee -
• 
"a dirty trick" and "a shabby thing". The reply of Shri 
Parasaran to this criticism runs thus: It ill-becomes the 
H 
manufacturers/assessees to espouse the cause of 
•
.. 
COMMNR. OF CENTRAL EXCISE, TIRUCHIRAPALLI v. 
275 
DALMIACEMENT(8HARAT) LTD. [A. K. SIKRI, J.] 
consumers, when all the while they.had been making a 
A 
killing at their expense. No consumers' organisation-had 
come forward to voice any grievance against the said 
provisions. Clause (e) of the proviso to sub-section (2) 
of Section 11-8 does provide for the buyer of the goods, 
to whom the burden of duty has been passed on, to apply 
8 
for refund of duty to him, provided that he has not in his 
turn passed on the duty to others. It is, therefore, not 
correct to suggest that the Act does not provide for refund 
~ 
of duty to the person who has actually borne the burden. 
c 
There is no vice in the relevant provi~ions of the Act. Rules 
cannot be relied upon to impugn the validity of an 
enactment, which must stand or fall on its own strength. 
The defect in the Rules, assuming that there is any, can 
alw.ays be corrected if the experience warrants it. The 
D 
Court too may indicate the modifications needed in the 
Rules. The Government is always prepared to make the 
appropriate changes in the Rules since it views the 
process as a "trial and error" method -
says Shri 
Parasaran. 
E 
105. It would be evident from the above discussion that 
the claims for refund under the said two enactments 
constitute an independent regimen. Every decision 
favourable to an assessee/manufacturer, whether on the 
F 
question of classification, valuation or any other issue, 
does not
automatically entail refund. Section 11-8 of the 
Central Excises and Salt Act and Section 27 of the 
Customs Act, whether before or after the 1991 
Amendment- as interpreted by us herein -
make every 
G 
refund claim subject to proof of not passing on the burden 
of duty to others. Even if a suit is filed, the very same 
condition operates. Similarly, the High Court while 
examining its jurisdiction under Article 226 -
and this 
Court while acting under Article 32 -
would insist upon 
H 
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A 
the said condition being satisfied before ordering refund. 
Unless the claimant for refund establishes that he has 
not passed on the burden of duty to another, he would 
not be entitled to refund, whatever be the proceeding and 
whichever be the forum. Section 11-B/Section 27 are 
B 
constitutionally valid, as explained by us hereinbefore. 
They have to be applied and followed implicitly wherever 
they are applicable. 
108. The discussion in the judgment yields the following 
c 
propositions. We may forewarn that these propositions 
7 
are set out merely for the sake of convenient reference 
and are not supposed to be exhaustive. In case of any 
doubt or ambiguity in these propositions, reference must 
be had to the discussion and propositions in the body of 
D 
the judgment. 
(1) Where a refund of tax/duty is claimed on the ground 
that it has been collected from the petitioner/plaintiff-
whether before the commencement of the Central 
E 
Excises and Customs Laws (Amendment) Act, 1991 or 
thereafter -
by misinterpreting or misapplying the 
provisions of the Central Excises and Salt Act, 1944 read 
with Central Excise Tariff Act, 1985 or Customs Act, 1962 
read with Customs Tariff Act or by misinterpreting or 
F 
misapplying any of the rules, regulations or notifications 
issued under the said enactments, such a claim has 
necessarily to be preferred under and in accordance with 
the provisions of the respective enactments
before the 
G 
authorities specified thereunder and within the period of 
limitation prescribed therein. No suit is maintainable in 
that behalf. While the jurisdiction of the High Courts under 
Article 226- and of this Court under Article 32 -cannot 
be circumscribed by the provisions of the said 
H 
enactments, they will certainly have due regard to the 
•
COMMNR. OF CENTRAL EXCISE, TIRUCHIRAPALLI v. 
277 
DALMIACEMENT(BHARAT) LTD. [A. K. SIKRI, J.] 
• 
legislative intent evidenced by the provisions of the said 
A 
Acts and would exercise their jurisdiction consistent with 
the provisions of the Act. The writ petition will be 
considered and disposed of in the light of and in 
accordance with the provisions of Section 11-B. This is 
for the reason that the power under Article 226 has to be 
B 
exercised to effectuate the rule of law and not for 
abrogating it. 
The said enactments including Section 11-B of the 
Central Excises and Salt Act and Section 27 of the 
c 
Customs Act do constitute "law" within the meaning of 
Article 265 of the Constitution of India and hence, any 
tax collected, retained or not refunded in accordance with 
the said provisions must be held to be collected, retained 
or not refunded, as the case may be, under the authority 
D. 
of law. Both the enactments are self-contained 
enactments providing for levy, assessment, recovery and 
refund of duties imposed thereunder. Section 11-B of the 
Central Excises and Salt Act and Section 27 of the 
Customs Act, both before and after the 1991 
E 
(Amendment) Act are constftutionally valid and .have to 
be followed and given effect to. Section 72 of the Contract 
Act has no application to such a claim of refund and 
cannot form a basis for maintaining a suit or a writ 
F 
petition. All refund claims except those mentioned under 
Proposition {ii) below have to be
and must be filed and 
adjudicated under the provisions of the Central Excises 
and Salt Act or the Customs Act, as the case may be. It 
is necessary to emphasise in this behalfthatAct provides 
G 
a complete mechanism for correcting any errors whether 
of fact or law and that not only an appeal is provided to a 
Tribunal-. which is not a departmental organ -
but to 
this Court, which is a civil court. 
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(i1) Where, however, a refund is claimed on the ground 
that the provision of the Act under which it was levied is 
or has been held to be unconstitutional, such a claim, 
being a claim outside the purview of the enactment, can 
be made either by way of a suit or by way of a writ petition. 
This principle is, however, subjectto an exception: Where 
a person approaches the High Court or the Supreme 
Court challenging the constitutional validity of a provision 
but fails, he cannot take advantage of the declaration of 
unconstitutionality obtained by another person on another 
ground; this is for the reason that so far as he is 
concerned, the decision has become final and cannot 
be reopened on the basis of a decision on another 
person's case; this is the ratio of the opinion of 
Hidayatullah, C.J. in Tilokchand Motichand (1969) 1 
SCC 110: (1969) 2 SCR 824: AIR 1970 SC 898 and 
we respectfully agree with it. Such a claim is maintainable 
both by virtue of the declaration contained in Article 265 
of the Constitution of India and also by virtue of Section 
72 of the Contract Act. In such cases, period of limitation 
would n_aturally be calculated taking into account the 
principle underlying clause (c) of sub-section (1) of 
Section 17 of the Limitation Act, 1963. A refund claim in 
such a situation cannot be governed by the provisions of 
the Central Excises and Salt Act or the Customs Act, as 
the case
may be, since the enactments do not 
contemplate any of their provisions being struck down 
and a refund claim arising on that account. In other words, 
a claim of this nature is not contemplated by the .said 
enactments and is outside their purview. 
(iii) A claim for refund, whether made under the provisions 
of the Act as contemplated in Proposition (1) above or in 
a suit or writ petition in the situations contemplated by 
Proposition (i1) above, can succeed only ifthe petitioner/
COMMNR. OF CENTRAL EXCISE, TIRUCHIRAPALLI v. 
279 
DALMIACEMENT (BHARAT) LTD. [A. K. SIKRI, J.] 
plaintiff alleges and establishes that he has not passed 
A 
~ 
on the burden of duty to another person/other persons. 
His refund claim shall be allowed/decreed only when he 
establishes that he has not passed on the burden of the 
duty or to the extent he has not so passed on, as the 
case may be. Whether the claim for restitution is treated 
B 
as a constitutional imperative or as a statutory 
requirement, it is neither an absolute right nor an 
unconditional obligation but is subject to the above 
requirement, as explained in the body of the judgment. 
c 
Where the burden of the duty has been passed on, the 
claimant cannot say that he has suffered any real loss or 
prejudice. The real loss or prejudice is suffered in such a · 
case by the person who has ultimately borne the burden 
and it is only that person who can legitimately claim its 
D 
refund. But where such person does not come forward 
or where it is not possible to refund the amount to him for 
.. 
one or the other reason, it is just and appropriate that 
that amount is retained by the State, Le., by the people. 
There is no immorality or impropriety involved in such a 
E 
proposition. 
The doctrine of unjust enrichment is a just and salutary 
doctrine. No person can seek to collect the duty from 
both ends. In other words, he cannot collect the duty from 
his purchaser at one end and also collect the same duty 
F
from the State on the ground that it has been collected 
from him contrary to law. The power of the Court is not 
meant to be exercised for unjustly enriching a person. 
The doctrine of unjust enrichment is, however, 
G 
inapplicable to the State. State represents the people of 
the country. No one can speak of the people being unjustly 
enriched. 
(iv) It is not open to any person to make a refund claim 
on the basis of a decision of a court or tribunal rendered 
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in the case of another person. He cannot also claim that 
the decision of the court/tribunal in another person's case 
has led him to discover the mistake of law under which 
he has paid the tax nor can he claim that he is entitled to · 
prefer a writ petition or to institute a suit within three years 
of such alleged discovery of mistake of law. A person, 
whether a manufacturer or importer, must fight his own 
battle and must succeed or fail in such proceedings. Once 
the assessment or levy has become final in his case, he 
cannot seek to reopen it nor can he claim refund without 
reopening such assessmenUorder on the ground of a 
decision in another person's case. Any proposition to 
the contrary not only results in substantial prejudice to 
public interest but is offensive to several well-established 
principles of law. It also leads to grave public mischief. 
Section 72 of the Contract Act, or for that matter Section 
17(1 )(c) of the Limitation Act, 1963, has no application 
to such a claim fOf refund. 
( v) Article 265 of the Constitution has to be construed in 
the light of the goal and the ideals set out in the Preamble 
to the Constitution and in Articles 38 and 39 thereof. The 
concept of economic justice demands that in the case of 
indirect taxes like Central Excises duties and Customs 
duties, the tax collected without the authority of law shall 
not be refunded to the petitioner-plaintiff
unless he alleges 
and establishes that he has not passed on the burden of 
duty to a third party and that he has himself borne the 
burden of the said duty. 
(vi) Section 72 of the Contract Act is based upon and 
incorporates a rule of equity. In such a situation, equitable 
considerations cannot be ruled out while applying the said 
provision. 
(vii) While examining the claims for refund, the financial 
chaos which would result in the administration of the State
COMMNR. OF CENTRAL EXCISE, TIRUCHIRAPALLI v. 
DALMIACEMENT (BHARAT) LTD. [A. K. SIKRI, J.] 
by allowing such claims is not an irrelevant consideration. 
Where the petitioner-plaintiff has suffered no real loss or 
prejudice, having passed on the burden of tax or duty to 
another person, it would be unjust to allow or decree his 
claim since it is bound to prejudicially affect the public 
exchequer. In case of large claims, it may well result in 
financial chaos in the administration of the affairs of the 
State. 
(viii) The decision of this Court in STO v. Kanhaiya Lal 
Mukundlal Saraf-must be held to have been wrongly 
decided insofar as it lays down or is understood to have 
laid down propositions contrary to the propositions 
enunciated in (1) to (vii) above. It must equally be held 
that the subsequent decisions of this Court following and 
applying the said propositions in Kanhaiya Lal have also 
been wrongly decided to the above extent. This 
declaration -
or the law laid down in Propositions (1) to 
(vii) above -
shall not however entitle the State to recover 
the taxes/duties already refunded and in respect whereof 
no proceedings are pending before any authority/Tribunal 
or Court as on this date. All pending matters shall, 
however, be governed by the law declared herein 
notwithstanding that the tax or duty has been refunded 
pending those proceedings, whether under the orders of 
an authority, Tribunal or Court or otherwise. 
(ix) The amendments made and the
provisions inserted 
by the Central Excises and Customs Law (Amendment) 
Act, 1991 in the Central Excises and Salt Act and the 
Customs Act are constitutionally valid and are 
unexceptionable. 
(x) By virtue of sub-section (3) to Section 11-B of the 
Central Excises and Salt Act, as amended by the 
aforesaid Amendment Act, and by virtue of the provisions 
281 
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contained in sub-section (3) of Section 27 of the Customs 
Act, 1962, as amended by the said Amendment Act, all 
claims for refund (excepting those which arise as a result 
of declaration of unconstitutionality of a provision 
whereunder the levy was created) have to be preferred 
and adjudicated only under the provisions of the 
respective enactments. No suit for refund of duty is 
maintainable in that behalf. So far as the jurisdiction of 
the High Courts under Article 226 of the Constitution -
or of this Court under Article 32 -
is concerned, it 
remains unaffected by the provisions of the Act. Even 
so, the Court would, while exercising the jurisdiction under 
the said articles, have due regard to the legislative intent 
manife~ted by the provisions of the Act. The writ petition 
woul~ naturally be considered and disposed of in the light 
of and in accordance with the provisions of Section 11-
B. This is for the reason that the power under Article 226 
has to be exercised to effectuate the regime of law and 
not for abrogating it. Even while acting in exercise of the 
said constitutional power, the High Court cannot ignore 
the law nor can it override it. The power under Article 
226 is conceived to serve the ends of law and not to 
transgress them. 
(xi) Section 11-B applies to all pending proceedings 
notwithstanding the fact that the duty may have been 
refunded to the petitioner/plaintiff pending
the 
proceedings or under the orders of the Court/Tribunal/ 
Authority or otherwise. It must be held that Union of India 
v. Jain Spinners and Union of India v. ITC have been 
correctly decided. It is, of course, obvious that where the 
refund proceedings have finally terminated -
in the 
sense that the appeal period has also expired -
before 
the commencement of the 1991 (Amendment) Act (19-
9-1991 ), they cannot be reopened and/or governed by
284 
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[2015] 9 S.C.R. 
force. I am of the opinion that if the said provisions are 
held applicable, even to matters concluded by the 
judgments or final orders of courts, it amounts to stating 
that the decision of the court shall not be binding and will 
result in reversing or nullifying the decision made in 
exercise of the judicial power. The legislature does not 
possess such power. The court's decision must always 
bind parties unless the condition on which it is passed 
are so fundamentally altered that the decision could not 
have been given in the altered circumstances ......... " 
12) The same view has been expressed by S.C. Sen, J.: 
"255. I shall now examine the other provisions of the 
. newly-added sections. Sub-section (1) of Section 11-8 
requires an application for refund to be made. Sub-
section (2) requires the Assistant Commissioner to pass 
an order of refund provided the conditions set out therein 
are fulfilled. Sub-section (3) merely lays down that no 
refund shall be made except as provided in sub-section 
(2). There is a non obstante clause that this will operate 
notwithstanding anything to the contrary contained in any 
judgment, decree, order etc. It is obvious that new 
provisions will apply in cases where applications for 
refund were made before the new provisions came into 
force and also subsequently. Sub-section (3) has no 
retrospective effect. When a case has been finally heard 
and disposed of
and no application for refund need be 
made, sub-section (3) cannot apply. If there is a judgment, 
decree or order which has to be carried out, the legislature 
cannottake away the force and effect of that judgment, 
decree or order, except by amending the law 
retrospectively on the basis of which the judgment was 
pronounced." 
13) Notwithstanding, the aforesaid dicta, Mr. Panda, 
learned senior counsel appearing for the appellant, still sees
COMMNR. OF CENTRAL EXCISE, TIRUCHIRAPALLI v. 
DALMIACEMENT (BHARAT) LTD. [A. K. SIKRI, J.] 
Section 11-8(3) [as amended by the 1991 (Amendment) 
Act]. This, however, does not mean that the power of the 
appellate authorities to condone delay in appropriate 
cases is affected in any manner by this clarification made 
by us. 
(xit) Section 11-B does provide for the purchaser making 
the claim for refund provided he is able to establish that 
he has not passed on the burden to another person. It, 
therefore, cannot be said that Section 11-B is a device 
to retain the illegally collected taxes by the State. This is 
equally true of Section 27 of the Customs Act, 1962." 
283 
A 
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11) It is clear from the above that in no unambiguous terms 
and with utmost clarity and certainty, the majority interpreted 
amended provisions of Section 11 B including proviso to sub-
0 
section (1) thereof to hold that so long as refund proceedings 
are pending, the amended provision would get attracted and 
would disentitle the manufacturer/payer from claiming any 
refund contrary to the said proviso. However, in those cases 
where the refund proceedings had finally been terminated, in E 
the sense - that the appeal period has also expired - before 
the commencement of the amended provision, these cannot 
be re-opened and/or governed by the amended provision. 
Concurring with the aforesaid view, K.S. Paripoornan, J. 
expressed his opinion in the following manner: 
F 
"342 ...... Sections
11-8(2) and (3) cannot be made 
applicable to refunds already ordered by the court or the 
refund ordered by the statutory authorities which have 
become final. It follows from a plain reading of Section 
11-B, clauses (1), (2) and (3) of the Act. The provisions 
contemplate the pendency of the application on the date 
of the coming into force of the Amendment Act or the 
filing of an application which is contemplated under law 
to obtain a refund after the Amendment Act comes into 
G 
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COMMNR. OF CENTRAL EXCISE, TIRUCHIRAPALLI v. 
285 
DALMIACEMENT (BHARAT) LTD. [A. K. SIKRI, J.] 
some light coming through a small .window as he wants pending A 
proceedings to include a situation where refund had not been 
granted, even when the order was passed, with the submission 
that the Assistant Commissioner even at this stage was 
competent to go into the question of unjust enrichment as order 
regarding grant of refund was post 1991 event. To buttress B 
this submission, he argued that the principle of unjust 
enrichment was in the domain of public interest and intention 
by incorporating provisions like proviso to sub-section (1) of 
Section 11 was clear, namely, so far as amount is not actually 
refunded, the authorities were competent to invoke this doctrine C 
of "unjust enrichment". It was argued that it will be totally 
inequitable and unfair to the public as the party (assessee 
herein) would be unjustly enriched. He also relied upon the 
orders dated 18.07.1995 by the High Court in Civil Writ No. 
0 
3225 of 1991 specifically permitting the Assistant Collector to 
go into the question whether the assessee is to be granted 
the refund in spite of amended Section 11 B of the Act with the 
following observation : 
"Both the Counsel agree that a date may be fixed when 
the petitioner shall appear before the collector/Assistant 
Collector, Central Excise, Trichiapalli, to go into the 
question if petitioner should be granted the refund in spite 
of Section 11 B
of the Central Excise and Salt Act. We, 
accordingly, direct that petitioner shall appear before the 
concerned Collector/Assistant Collector, Central Excise, 
Trichirapalli on 22"d September 1995. no further orders 
are required in this petition, which stands disposed of." 
E 
F 
· 14) After examining the matter in its entirely, we find that G 
it is not possible to countenance the aforesaid submission of 
Mr. Panda. In the first instance, it requires to be remarked that 
only after amendment in Section 11 B of the Act in the year 
1991, any person applying for refund has to establish that 
incidence of such duty has not been passed on by him to any H
286 
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[2015] 9 S.C.R. 
A other person. The unamended provision did not contain any 
such stipulation. Therefore, under the old provision, the only 
obligation of the person claiming refund was to make such an 
application before the expiry of six months from the relevant 
date and to show how the refund was admissible to the 
B applicant. In such a case, the Assistant Collector of Central 
Excise was to only examine as to whether excise duty was 
paid in excess etc. and was refundable to the claimant as a 
· result of adjudication of the dispute or otherwise. It is only in 
the amended provision that additional stipulation is provided 
C as per which the claimant is required to file, along with 
application for refund, such documentary mother evidence 
including documents referred to any Section 12AoftheAct to 
establish that the amount of duty of excise was collected from 
0 
the claimant or paid by the claimant and that "incidence of such 
duty had not been passed on by him to any other person". It 
clearly follows from the above that before the amendment of 
Section 11 B of the Act, principle of unjust enrichment was not 
incorporated under the unamended provision. In fact that was 
E 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 the unamended 
provision which was removed by making amendment, 
popularly known as Heydon's
Mischief Rule. 
F 
15) Proviso to sub-section (1) of Section 118, as 
amended, would be applicable in a situation where an 
application for refund made before the said amendment was 
still pending at the time when the provisions of Section 11 B 
G were amended. This is how the said proviso is interpreted by 
this Court in Mafatlal Industries Ltd. (supra). 
16) Once we find that no such application was pending 
and the orders on the said application had already been 
H passed, the proviso ceases to have any application. The 
reason, even otherwise, is very obvious. Section 11 B relates
COMMNR. OF CENTRAL EXCISE, TIRUCHIRAPALLI v. 
287 
DALMIA CEMENT (BHARAT) LTD. [A. K. SIKRI, J.] 
to claim for refund of duty and the procedure for such a refund 
A 
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 same is to be considered in accordance with this 
B 
provision. As already pointed out above, 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 on by the applicant claiming refund to any other person 
or not. However, if the application was not decided till the time C 
amendment was incorporated in the year 1991, as. per the 
proviso, while dealing with such an application for refund, the 
Assistant Commissioner is still empowered to go into this 
question even when the application was filed before the. 0 
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 decided. If the order for refund on such an application had 
already been passed before coming into force the amended 
E 
provision and no application was pending at the 
commencement of the Central Excise and Customs Laws 
(Amendment) Act, 1991 before the Assistant
Commissioner 
and, therefore, question of applying the said proviso and going 
into the issue as to whether incidence of such duty had been 
F 
passed by the applicant to any other 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. By no 
stretch of imagination, the Officer, at the time of carrying out 
the orders for refund, which have already been passed, can G 
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. In the instant case, the order on the refund application of 
the respondent had been passed on 06.06.1989, which was 
much before the amended provision came into operation. In 
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[2015] 9 S.C.R. 
A 
fact, even after the order of refund was passed, the appellant 
had not refunded the amount and it is in these circumstances 
that writ petition was filed in the High Court for initiation of 
contempt proceedings against the defaulting officers. In such 
proceedings, the High Court had passed the order dated 
B 18.07.1995. In this order, no doubt, the Court observed that 
the Assistant Commissioner would go into the question if the 
respondent should be granted the refund in spite of Section 
11 B of the Act. However, merely because of such observations, 
it cannot be said that the Assistant Commissioner was entitled 
c to look into the issue of unjust enrichment when if, otherwise,. 
he he was otherwise had no jurisdiction to do so in the facts of 
the present case. Such observations were given in view of 
the statement of the counsel for the Government who brought 
0 
to the notice of the Court the amended provisions contained 
in sub-section (3) of Section 11 B of the Act. The High Court 
did not go into the issue as to whether such a course of action 
was permissible or not. Another pertinent aspect which needs 
to be kept in mind is that the interpretation that is to be accorded 
E to the amended provision had not been decided by this Court 
till that time and the law on this issue came to be settled in the 
year 1997 only when the judgment in Mafatlal Industries Ltd. 
(supra) was pronounced by this Court. 
F 
17) Thus,
when the order of the Assistant Commissioner 
was challenged and the matter came before the Tribunal, the 
Tribunal was duty bound to apply the law laid down in Mafatlal 
Industries Ltd. (supra), which it did. Similar exercise is done 
by the High Court in the impugned judgment. We find that the 
G view taken by the High Court is in consonance with the law 
laid down by this Court in the aforesaid case. 
18) We find that there is no scope to interfere with the 
impugned decision of the High Court and, accordingly, dismiss 
this appeal. 
No costs. 
Nidhi Jain 
Appeal dismissed.