Bombay High Court
India Dyestuff Industries Ltd. vs The Union Of India (Uoi) And Anr. on 21 February, 2002
Equivalent citations: 2002(83)ECC306, 2003(161)ELT12(BOM)
Author: J.P. Devadhar
Bench: V.C. Daga, J.P. Devadhar
JUDGMENT J.P. Devadhar, J.
1. Petitioners namely Indian Dyestuff Industries Ltd. have filed these three Writ Petitions challenging various show cause notices issued by the Respondents under Section 11-A of the Central Excise & Salt Act, 1944 (Act for short) either seeking to reject the refund claim of the Petitioners or seeking to recover excise duty erroneously refunded to the Petitioners.
2. Before the commencement of arguments, Mr. Nankani, learned Counsel appearing for the Petitioners fairly conceded that the show cause notice dated 5th December, 1988 (Exhibit-N in Writ Petition No.2857/1989) seeking to reject the refund claim of the Petitioners is required to be adjudicated upon by the authorities in the light of the decision of the Apex Court in the case of Mafatlal Industries Ltd. V/s. Union of India reported in 1997(89) E.L.T. 247. Accordingly, the learned Counsel did not press the challenge to the said show cause notice dated 5.12.1988 (Exhibit-N in Writ Petition No.2857/89) which pertain to rejecting the refund claim of the Petitioners.
3. Thus, the challenge in these petitions are restricted to various show cause notices issued by the Respondents under Section 11A of the said Act, seeking to recover the amounts erroneously refunded to the Petitioners.
4. The facts relevant for the purpose of the present petitioners are :-
F A C T S
5. The Petitioners are a public limited company and are engaged in the manufacture and processing inter alia of dyes and chemicals. The goods manufactured by the Petitioners are liable to excise duty under the said Act.
6. By an order dated 11th September, 1984 the Asstt. Collector of Central Excise, Kalyan Division inter alia held that post manufacturing expenses like interest charges and additional sales tax were not includible in the assessable value of the goods. In view of the reduction in the assessable value, the Petitioners became entitled to refund of excise duty on past clearances. As the amount of excise duty refundable on account of reduction in assessable value were not clearly identifiable, the Petitioners were asked by the said order to file separate refund claims on actual basis.
7. Accordingly, the Petitioners filed various refund applications and after several rounds of litigation, ultimately by four refund orders dated 31-5-1988, 8.8.1988, 8.8.1988 and 6.12.1988, the Asstt. Collector of Central Excise quantified the amount of refund and ordered and permitted the Petitioners to take credits of the amount, as more particularly set out in the said refund orders. In all those refund orders, it was specifically stated that the refund granted is conditional as the issue of allowability of the post manufacturing expenses was pending before the Apex Court. For the sake of convenience, we quote the relevant portion from one of the refund orders passed by the Respondents, which reads as under :-
" Further it has been observed that you have already collected the Central Excise, duty on the value inclusive of interest charges and Addl. Sales Tax from your customers and therefore, the refund amount now claimed by your amounts to be added assessable value. C.Ex. duty due on the same is required to be deducted from the refund claims. You have already in case of other refund claims. As such if you feel aggrieved for this recovery, you may resort to the proper Appellate procedure for the same.
The calculations of the net claim to be granted is shown in the Annexure A to this letter. This refund claim is sanction subject to the final outcome of the Departments (Sic) Collector & others V/s. Madras Rubber Factory Ltd. & Others decided on 20.12.1986."
8. At this stage, it is also relevant to note that by a letter dated 31st May, 1988 the Petitioners gave an undertaking to the Asstt. Collector of Central Excise, Kalyan Division to the effect that they would refund the amount of refund granted and paid to them in case the issue pending before the Supreme Court in the case of M.R.F. Ltd. is decided against the Petitioners. Relevant portion of the said letter, reads as under:-
" We hereby undertake to repay the amounts of refund of duty on the interest charges and Additional Sales Tax granted and paid to us, in respect of the years 1982-83 and 1983-84, in case the decision of the Supreme Court of India in the matter of appeal preferred by the Government of India against the M.R.F. Judgment is against the Company."
9. Thus, it is clear that on the date when refund was granted and paid to the Petitioners, both the parties accepted the position that the issue of refund was not finalised and that the revenue would be entitled to recover the amount refunded, if the decision of the Apex Court was in favour of the revenue.
10. Accordingly, the Respondents after granting and paying the refund amount issued show cause notices under Section 11A of the said Act dated 31.10.1988 (Exhibit-K in Writ Petition No.5770 of 1988), show cause notice dated 3.2.1989(Exhibit-P in Writ Petition No.2857 of 1989) and show cause notice dated 22.4.1989 (Exhibit-T in Writ Petition No.3172 of 1989) and sought to recover the amounts refunded to the Petitioners on the ground that the refund granted was erroneous because (i) the review petition in the case of M.R.F. Ltd. was pending before the Apex Court and (ii) in view of the decision of this Court in Roplas (India) Ltd., refund cannot be allowed where duty is collected from the customer. The validity of these show cause notices are the subject matter of challenge in these three Writ Petitioners.
S U B M I S S I O N S
11. Mr. Nankani, learned Counsel appearing on behalf of the Petitioners submitted as under:-
(a)The issue on merits regarding deduction of interest on receivable and additional sales tax stands settled in favour of the Petitioners as the review petition filed by the Revenue has been finally decided in favour of the assessee in the case of Government of India V/s. Madras Rubber Factory Ltd.
reported in 1995 (77) E.L.T. 433.
(b)the refund in the present case was granted pursuant to the orders of final assessment which have attained finality and not appealed against before the amendment Act of 1991. Having regard to the law in force at the time when the refund was sanctioned to the Petitioners, the condition of unjust enrichment was neither incorporated in the statute nor available with the statutory authority for denying the refund to the assessee.
(c)The decision of this Court in Roplas India Ltd. reported in 1988 (38) E.L.T. 27 is applicable only in case where refund is granted by the High Court under Article 226 of the Constitution of India and not in case like that of the Petitioners where the refund is granted by the statutory authority pursuant to the final approval/assessment of the price lists.
(d)The 1991 amendment has no application in the present case since the refund was already granted prior to the introduction thereof and no refund application was pending.
12. On the other hand, Mr. Desai, learned Counsel appearing on behalf of the Respondents submitted that the issues raised in these petitions are squarely covered by the decision of the Apex Court in the case of Mafatlal Industries V/s. Union of India (supra). It was submitted that the refund granted by the Respondents being conditional and subject to the undertaking given by the Petitioner, the issue of refund had not attained finality and the Excise Authorities were justified in issuing the show cause notices under Section 11A of the Act to recover the erroneous refund granted to the Petitioners. It was submitted that since the refund granted was erroneous and time limit for invoking provision of Section 11A for recovery of the amount erroneously refunded was 6 months from the date of refund, the revenue in this case was perfectly justified in invoking the jurisdiction u/s.11A within the period of 6 months from the date of refund. It was submitted that the Apex Court initially allowed the Review Petition, as reported in M.R.F. case as reported in 1989 (41) E.L.T. 403 by recalling its earlier decision reported in 27 E.L.T. 553 and finally decided the issue in favour of the manufacturers, as reported in 1995 (77) E.L.T. 433. It was submitted that when the issue was finally settled by the Apex Court in the year 1995, it could not be said that the show cause notices issued u/s.11A of the said Act in the year, 1988 were without jurisdiction. It was submitted that during the pendency of these show cause notices, Section 11-B of the said Act has been amended and in view of overriding provisions contained in Section 11-B of the said Act, the issue of erroneous refund which are subject matter of these show cause notices have to be dealt with in the light of amended provisions of Section 11B of the said Act.
13. With these facts on record, the issues that arise for consideration in these petitions are:-
I S S U E S
(i)When the order in original dated 11.9.1984 had attained finality & refund was granted as consequential relief, whether the Central Excise Officer had jurisdiction to issue notices u/s. 11A of the said Act to recover the refund without challenging the order in original dated 11.9.1984 ?
(ii)Whether Section 11-B of the Central Excise & Salt Act, 1944 as amended in 1991 is applicable to the case of the Petitioners when the refund was granted and paid in the year, 1988 pursuant to the order in original dated 11.9.1984 which has attained finality ?
REASONS
14. Having considered the arguments advanced on behalf of the parties and having perused the record, we are of the opinion that the impugned show cause notices u/s. 11A of the said Act for recovery of dues erroneously refunded have been validly issued. Since the validity of these show cause notices were pending when Section 11-B of the Central Excise and Salt Act, 1944 was amended in 1991, the issues raised in the show cause notices issued u/s.11A of the said Act regarding recovery of erroneous refund has to be dealt in accordance with the amendment provisions of Section 11B of the said Act. In the instant case, since refund was conditional and the recovery of the said refund under Sec. 11-A was pending on the date when the amendment Act, 1991 came into force, the refunds which are the subject matter of the impugned show cause notices have to be subject to the amended provisions of Section 11B of the said Act.
15. The submissions of the Petitioners that when the refund was granted as a consequential relief by accepting the order in original dated 11.9.1984, it was not open to the Revenue to resort to Section 11A of the said Act and purport to recover the amount refunded on the ground that the amount was erroneously refunded and that if at all the revenue was aggrieved by the order in original, the proper course open to the revenue was to file an appeal u/s. 35 of the said Act and that having accepted the order in original dated 11.9.1984, it was not open for the revenue to invoke jurisdiction u/s. 11A of the said Act have no merit, because, before invoking the jurisdiction u/s. 11A of the said Act, it was not mandatory for the Revenue to challenge the order in original by filing appeal. The show cause notice u/s. 11A of the said Act can be issued, if there are grounds existing such as short levy or short recovery of erroneous refund, etc. under the scheme of the said Act. The only way by which an erroneously refunded duty could be recovered is by resorting to the powers conferred under Section 11A. The issuance of a notice under Section 11A is a primary and fundamental requirement for recovery of any money erroneously refunded. Setion 11A is the fountain head of all the powers for recovery of any money erroneously refunded. There are no preconditions attached for issuance of notice under Section 11A for recovery of the amount erroneously refunded. There is no requirement of passing an adjudication order and if adjudication order is passed, there is no need to initiate appellate proceedings before issuing notice under Section 11A. Second proviso to Section 35A(3) which states that no order in appeal requiring the appellant to pay any duty erroneously refunded shall be passed unless the Appellant is given show cause notice within the time limit prescribed in Section 11A also shows that Section 11A is a independent substantive provision and it is a complete code in itself for realisation of excise duty erroneously refunded. Under the circumstances, the contention of the Petitioner that notice under Section 11A could not be issued without challenging the order in original is without any merit.
16. Mr. Nankani, learned Counsel for the Petitioners relied upon the decision of the Apex Court in the case of Collector of Central Excise, Kanpur V/s. Flock (India) Pvt. Ltd. reported in 2000 (120) E.L.T. 285 and submitted that without challenging the order in original, it is not open to the revenue to deny refund. It was submitted that since the refund was granted as a consequential relief, in the absence of challenge to the order of adjudicating authority, the issue of refund had attained finality and it could not have been kept open by invoking jurisdiction u/s. 11A of the said Act. In our opinion, the aforesaid decision of the Apex Court is not applicable and wholly distinguishable on facts. First of all, the issue before the Apex Court was with regard to scope of refund available to the assessee under Rule 11 of C.E. Rules, 1994 and not with reference to the scope of Section 11A of the said Act empowering the revenue to initiate proceedings to recover the amount of duty erroneously refunded. Secondly, as stated hereinabove, for invoking jurisdiction under Section 11A, there need not be adjudication order or appellate order as the case may be and Section 11A is a independent substantive provision. Thirdly, even on merits, the said decision is distinguishable. In the case before the Apex Court, the adjudicating authority had classified the goods manufactured therein as falling under Tariff Item No.22-B and the refund claim was filed on the basis that the goods are classifiable under T.I. 22A. Therefore, the issue before the Apex Court was having accepted the classification under Tariff Item No.22B as held in the adjudication order was it open to the assessee to claim refund by contending that the goods are classifiable under Tariff Item 22A. In that context, the Apex Court held that without filing an appeal, it is not open to the party to question the correctness of the order of the adjudicating authority by filing a refund claim. Therefore, the aforesaid decision of the Apex Court does not support the contention of the Petitioners.
17. Once it is held that the provision of Section 11A are independent and substantive, then the question that arises for consideration is whether there were grounds for invoking jurisdiction under Section 11A of the Act. In our opinion, the refund orders passed and the letter addressed by the Petitioners clearly show that the refund granted was conditional and subject to the decision of the Apex Court in the case of M.R.F. Ltd. If, ultimately, the Apex Court, in the case of M.R.F. Ltd. had upheld the case of the revenue, then the only course open to the revenue to recover the amount was by invoking jurisdiction under Section 11A of the said Act. In that event, even the undertaking given by the Petitioners could be enforced subject to the limitation prescribed under Section 11A. Therefore, the conditional refund orders passed in the matter, the undertaking given by the Petitioners and the conduct of the parties in treating the issue of refund to be pending and could be recovered by the revenue, subject to the decision of the Apex Court, clearly justify the action of the revenue in invoking jurisdiction U/s.11A of the said Act. The Petitioners having accepted the conditional refund order and having received the amount by giving an undertaking to refund the amount in case the decision of the Apex Court in the case of M.R.F. goes in favour of the revenue, cannot now turn around and say that the issue of refund had attained finality and there were no grounds to invoke jurisdiction under Section 11A of the Act. In this view of the matter, we are of the opinion that there were sufficient grounds for invoking the jurisdiction under Section 11A of the Act.
18. Once the Apex Court decision in M.R.F. Ltd. was against the revenue, in the ordinary course, we would have held that there is no merit in the impugned show cause notices issued under Section 11A of the Act. However, during the pendency of these proceedings, Section 11B of the Act was substantially amended by Central Excise & Customs Laws (Amendment) Act, 1991 with effect from 20.9.1991. While upholding the Constitutional validity of these provisions, the Apex Court in the case of Mafatlal Industries Ltd. V/s. Union of India (supra) stated in paras 87 and 95 as follows:-
" 87. It is submitted by the learned Counsel for the petitioners-appellants that the amended Section 11B is prospective in operation and cannot apply to pending proceedings. In support of this contention, it is submitted that according to sub-section (1), the application for refund has to be accompanied by "documentary or other evidence including the documents referred to in Section 12A" to prove that the incidence of duty has not been passed on by the applicant to any other person. It is submitted that Section 12A was also inserted by the very same 1991 (Amendment) Act and, therefore, it is not expected of any manufacturer/assessee to maintain the records required by Section 12A, prior to its coming into force. It is submitted that in respect of an application filed before the commencement of the said Act, it is not possible to comply with the requirement of sub-section (1) insofar as it requires the filing of documents referred to in Section 12A. This circumstance is pointed out as a ground for holding that the amended Section 11B applies only to refund applications filed after coming into force of 1991 (Amendment) Act. It is further submitted that the right to recover excess duty paid is both a constitutional and a statutory right.
It is also a substantive right, it is submitted, as held in Commissioner of Sales Tax, Uttar Pradesh v. M/s. Auriaya Chamber of Commerce, Allahabad and Patel India Private Limited v. Union of India & Ors. . All these factors, it is submitted, militate against giving retrospective effect to Section 11B. It is difficult to agree with the propositions in the light of the specific and clear language of the first proviso to the sub-section (1). The first provision expressly declares that "where an application for refund has been made before the commencement of the Central Excise and Customs (Amendment) Act, 1991, 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) substituted by that Act". In the face of this proviso, it is idle to contend that sub-sections (1) and (2) of Section 11B do not apply to pending proceedings. They apply to all proceedings where the refund has not been made finally and unconditionally. Where the duty has been refunded under the orders of the Court pending disposal of an appeal, writ or other proceedings, it would not be a case of refund finally and unconditionally. as explained in Jain Spinners and I.T.C. It is, of course, obvious that where the refund proceedings have finally terminated - in the sense that the period prescribed for filing the appeal against such order has also expired - before the commencement of the 1991 (Amendment) Act [September 19, 1991], they cannot be reopened and/or be governed by Section 11B(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. So far as the difficulty or impossibility of filing the documents referred to in Section 12A is concerned, it is obvious that the said requirement cannot be insisted upon in cases where the application is filed prior to the commencement of the Act or for the period anterior to the commencement of the said Amendment Act, though the burden of proving that the burden of duty has not been passed on by him is still upon the applicant.
Sub-section (1) of Section 11B is of general application. It not merely governs the pending applications but also provides for future applications. Reasonably construed and read together, the said provisions mean that in respect of pending applications, the requirement is only to produce such documentary and other evidence as is sufficient to establish that the incidence of duty, refund of which is claimed, has not been passed on by the applicant to any other person. The requirement of enclosing the documents referred to in Section 12A is obligatory only where the claim of refund pertains to the period subsequent to the commencement of the 1991 (Amendment) Act.
95. Rule 9B provides for provisional assessment in situations specified in Clauses
(a), (b) and (c) of sub-rule (1). The goods provisionally assessed under sub-rule (1) may be cleared for home consumption or export in the same manner as the goods which are finally assessed. Sub-rule (5) provides that "when the duty leviable on the goods is assessed finally in accordance with the provisions of these Rules, the duty provisionally assessed shall be adjusted against the duty finally assessed, and if the duty provisionally assessed falls short or or is in excess of the duty finally assessed, the assessee shall pay the deficiency or be entitled to refund, as the case may be". Any recoveries or refunds consequent upon the adjustment under sub-rule (5) of Rule 9B will not be governed by Section 11A or Section 11B, as the case may be.
However, if the final orders passed under sub-rule (5) are appealed against - or questioned in a writ petition or suit, as the case may be, assuming that such a writ or suit is entertained and is allowed/decreed - then any refund claim arising as a consequence of the decision in such appeal or such other proceedings, as the case may be, would be governed by Section 11B. It is also made clear that if an independent refund claim is filed after the final decision under Rule 9B(5) re-agitating the issues already decided under Rule 9B - assuming that such a refund claim lies - and is allowed, it would obviously be governed by Section 11B. It follows logically that position would be the same in the converse situation.
Again, while summarising the proposition, the Apex Court held in para 99(xi) as follows:-
"99(xi) Section 11B 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. I.T.C. 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 [September 19, 1991], they cannot be re-opened and/or governed by Section 11B(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."
From the aforesaid findings of the Apex Court, it is clear that the amended provisions of Section 11B are applicable to all proceedings where the refund has not been made finally and unconditionally.
19. In the instant case, once it is held that the impugned show cause notices under Section 11A of the Act have been validly issued and both the par ties had accepted the position that the issue of refund had not attained finality and the amount refunded was subject to the decision of the Apex Court in M.R.F. Ltd., then in the light of the decision of the Apex Court in Mafatlal Industries Ltd. (supra), the Respondents are en titled to adjudicate the said show cause notices in accordance with the amended provisions of Section 11B of the said Act. At the final hearing of the show cause notices, the Petitioners may have a case to establish that in view of the subsequent decision of the Apex Court in M.R.F. Ltd. (supra), they are entitled to retain the amount refunded go them. But, before the Respondents can adjudicate the show cause notices, the Amendment Act having come into force, the claim for refund which are subject matter of the impugned show cause notices are liable to be adjudicated in accordance with the amended provisions of Section 11B of the Act.
20. Mr. Nankani, contended before us that the proviso to Section 11B(1), as amended in 1991, does not take within its ambit refund granted as a consequential relief. Mr. Nankani drew our attention to para 95 of the decision in the case of Mafatlal Industries Ltd. (supra) and contended that when any recovery or refund consequent upon the adjustment under Rule 9B(5) is not governed by Section 11A or Section 11B, then on the same parity of reasoning, if the order in original is not challenged and refund is granted as a consequential relief as in this case, the provisions of Section 11A or Section 11B are not applicable. There is no merit in this contention. First of all, in the case of Petitioners, the refund is not on account of adjustment after final assessment under Rule 9B(5) of the Central Excise Rules. Secondly, the Apex Court in para 95 of the aforesaid Judgment itself held that if the final orders passed under Rule 9B(5) are appealed against or questioned in a Writ or Suit and on account of those decisions any refund arises as a consequence, then the same will be governed by Section 11B. The Apex Court has further clarified as follows :-
" if an independent refund claim is filed after the final decision under Rule 9B(5) reagitating the issues already decided under Rule 9B - assuming that such a refund claim lies - and is allowed, it would obviously be governed by Section 11B. It follows logically that position would be the same in the converse situation."
21. Apart from that, the Apex Court in the case of Serai Kella Glass Works Pvt. Ltd. V/s. Collector of C.E., Patna reported in 1997(91) E.L.T. 497 has further clarified that on finalisation of the assessment, if there is any deficiency in duty, show cause notice under Section 11A is not required because as per Rule 173 F read with Rule 173I of Central Excise Rules, 1944, such duty is required to be paid by adjustment in current account within ten days of receipt of the copy of the monthly return. Therefore, if the duty payable on final assessment is more than the duty paid on provisional assessment, the assessee has to pay the deficiency by making a debit in the account current within 10 days and if the duty on final assessment payable by the assessee is less than what is actually paid, the assessee is entitled to take credit in the account current for the excess payment. It is only when, dehors the duty determined on final assessment, if it is found that any duty has not been levied or not paid or short levied or short paid or erroneously refunded, show cause notice under Section 11A can be issued. No such case arises in the present case and hence there is no merit in the submission made on behalf of the Petitioners.
22. Mr. Nankani, thereafter relied upon the decision of the A.P. High Court in the case of VBC Industries Ltd. V/s. Union of India reported in 1999(114) E.L.T. 378 and in particular referred to para 6 of the said Judgment and contended that the refund made pursuant to a binding decision cannot be said to be erroneous refund within the meaning of Section 11A. This submission is totally misplaced. In the case before the A.P. High Court, refund was made pursuant to the order of High Court. On the said decision of the High Court, being reversed by the Apex Court, the revenue issued notice under Section 11A to recover the amount refunded to the Petitioners. Challenging the said notice in a writ, it was contended on behalf of the Petitioners therein that the refund granted pursuant to the High Court constituted erroneous refund within the meaning of Section 11A and further contended that the notice was issued beyond the period of limitation prescribed under Section 11A of the said Act, the same was bad in law. In that context, while rejecting the contention of the Petitioner, the A.P. High Court held that the refund is a result of a conscious act on the part of the concerned authorities to comply with the Judgment of the High Court. The said decision does not support the contention of the Petitioner. On the contrary, in the Petitioners case, the refund was with a conscious understanding that the amount may have to be returned to the revenue and the Petitioners accepted the amount of refund with a conscious understanding that the said amount may have to be refunded. Hence, issuance of the notice within the period of limitation was justified.
23. Mr. Nankani, then referred to various decisions of this Court and submitted that the plea of unjust enrichment is not applicable to the authorities created under the statute. It was submitted that the decision of this Court in the case of Roplas (India) Ltd. V/s. Union of India reported in 1988 (38) E.L.T.27 which has been relied upon in the show cause notices, is not applicable to the case of the Petitioners. Mr. Nankani sought to make distinction between the refund claims made before the excise authorities and the refund claim made directly by way of a writ. In our opinion, all these arguments are now academic in view of the amendment to Section 11B in 1991 and in view of the decision of the Apex Court in the case of Mafatlal Industries Ltd. (supra). As stated hereinabove, once it is held that the show cause notices issued are valid and the issue of refund was pending on the date when the amendment came into force, then the said show cause notices are liable to be adjudicated as per the amended provisions of Section 11B of the Act.
24. Mr. Nankani finally contended that what is challenged in the petition is the validity of show cause notices issued under Section 11A of the said Act. It was submitted that if the notices are quashed there will be no question of refund. It was submitted that in these petitions, there was no prayer seeking refund and hence Section 11B of the Act was not applicable. Referring to Section 11B(3), (old as well as new) it was submitted that these provisions do not contemplate any notice being given and these provisions do not have retrospective effect. It was submitted that in the absence of any appeal pending against the order in original, these provisions are not applicable to the case of the petitioners. In our opinion, once the Apex Court held that all the pending refund matters as on 20.9.1991 have to be dealt with in accordance with the amended provisions of Section 11B, then these arguments are not available to the Petitioners. Moreover, when constitutional validity of a Section is upheld by the Apex Court, then it is deemed that all facets of challenge to the constitutional validity have been considered and negatived. It may not be out of place to refer to the decision of the Apex Court in the cae of S.R.F. Ltd. V/s. Asstt. Collector of Central Excise , wherein it is held that even where the levy is held to be unconstitutional, the assessee would not be entitled to refund in terms of law settled by the Mafatlal Industries case, by establishing that incidence of duty has not been passed on. Therefore, these show cause notices which are issued issued in accordance with law and pertain to recovery of erroneous refund are liable to be adjudicated in accordance with the amended provisions of Section 11B of the Act.
O R D E R
25. For all the reasons stated hereinabove, we uphold the validity of the show cause notices impugned in these Writ Petitions and direct the Respondents to adjudicate these show cause notices, in accordance with law as per the amended provisions of Section 11B of the Act and after giving personal hearing to the Petitioners. Since these show cause notices are pending since 1988, we direct that the same may be adjudicated as expeditiously as possible and preferably within a period of 6 months from today.
26. Accordingly, all these Writ Petitions fail and the Rules are discharged with no order as to costs.