JUDGMENT
S.P. Bharucha, C.J.
1. The order under appeal directs the Central Government (3rd appellant) to refund to the respondent (the writ petitioner) the excess duty paid by the latter under the Central Excises and Salt Act, 1944, for the full period of three years and not only for the limited period of six months prior to the date of the refund application.
2. On behalf of the appellants, two contentions are raised. The first is based upon the Explanation to Section 4(4)(d)(ii) of the Act and the judgment of a Full Bench of this Court, Union of India v. Alembic Glass Industries, 1992 (61) E.L.T. 193 (Kar.) which deals with it. The judgment was delivered subsequent to the order under appeal. There is no dispute, and there cannot be, that the law laid down by the Full Bench must govern the refund to be made, so that the first appellant (the Assistant Collector of Central Excise) must take this judgment into account in determining what the amount of the refund due to the writ petitioner is.
3. Secondly, reliance is placed upon the amendment to the Act sub-sequent to the order under appeal to cover cases of what has come to be known as “unjust enrichment.” By reason of the amendment to Section 11B, sub-section (3) thereof reads thus :-
“(3) Notwithstanding anything to the contrary contained in any judgment, decree order or direction of the Appellate Tribunal or any Court or in any other provision of the 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).”
Sub-section (1) of Section 11B requires the applicant for refund to establish that the amount of excise duty in relation to which refund is claimed “was collected from or paid by, him and the incidence of such duty had not been passed on by him to any other person”. By reason of the amendment to sub-section (2), the Assistant Collector of Central Excise is required to be satisfied upon such application that “the whole or any part of the duty of excise paid by the applicant is refundable” and thereupon “he may make an order accordingly and the amount so determined shall be credited to the Fund”. The “fund” is defined by Section 2(ee) to mean the Consumer Welfare Fund established under Section 12C and the money credited to the fund is required, by reason of Section 12D, to be utilised by the Central Government for the welfare of consumers in accordance with Rules in that behalf that it might make.
4. It is submitted, and rightly, that the order under appeal can operate only subject to the aforesaid provisions. Thus, the writ petitioner shall now have to establish before the first appellant that the incidence of the excise duty in question had not been passed on by it to any other person and, if any amount is found to be refundable, the first appellant shall credit the same to the said consumer Welfare Fund.
The order under appeal, is modified in the aforesaid terms and the appeal is allowed accordingly.