ORDER
Gowri Shankar, Member (T)
1. Both the appeals are against the orders of the Collector (Appeals) holding that the assessees were not entitled to refund.
2. The Departmental Representative contends that the orders of the Collector (Appeals) do not take into account the judgements of the Bombay High Court in Roplas India v. Union of India and New India Industries v. Union of India 1990 (30) ECR 145 (Bom.) : 1990 (46) ELT 23 (Bom.), in which the Bombay High Court has held that refund should not be sanctioned if the incidence of duty has been passed on. He therefore requests that the orders impugned be set aside.
3. The judgements of the High Court cited by the Departmental Representative did not have the effect of amending Section 11B to exclude grant of refund, if the incidence of duty has not been passed on. In fact, in a later judgement the Bombay High Court in Corn Products Co. (I) Ltd. v. Union of India 1991 (34) ECR 209 (Bom.) : has ordered grant of pending refund holding that judgement in Roplas India v. Union of India is not a good law. The orders of the Assistant Collector and the Collector (Appeals) were passed prior to June 1991 when Section 11B was amended so as to incorporate the doctrine of unjust enrichment. Therefore, on the dates on which these orders were passed and the appeals against Collector (Appeals) orders filed, there was nothing in the statute which prohibited grant of refund in cases where incidence of duty has been passed on. It is another matter that the refund now may be subject to the same condition, on account of subsequent amendment to the law. That however is a result of that amendment and will not be a consequence of these appeals.
4. Appeals dismissed. Consequential reliefs to respondents, if permitted by law.
Dictated in Court.