ORDER
S. Kalyanam, Member
1. This is an application seeking stay of the operation of the impugned order of the Collector (Appeals), Madras, dated 28.8.1992 reversing the order of the Assistant Collector, Madras and directing the petitioner to pay back the sum of Rs. 1,29,501/- which amount was refunded to the petitioner by the order of the Assistant Collector dated 19.8.1991.
2. Shri Chidambaram, the learned Consultant for the petitioner submitted that the impugned order has been passed on the basis of an order of review by the Collector of Central Excise under Section 35E(2) of the Central Excises & Salt Act, 1944 reviewing the order of the Assistant Collector, Madras granting refund of the amount in question. Shri Chidambaram contended that under the impugned order the Collector (Appeals) has taken the view that by virtue of amendment to Section 11B of the Central Excises & Salt Act, 1944 effective from 20.9.1991 (by Act 40/91) the petitioner would be liable to pay back the amount erroneously refunded by the AC by his order dated 18.9.1991 and the learned Consultant assailed the correctness of this finding contending that Section 11B(3) incorporating the applicability of doctrine of unjust enrichment was put into the Statute book only on 20.9.1991 and the amendment does not in any way make the order operative retrospectively for the purpose of recovery of the amount already refunded. In support of his plea the learned Consultant placed reliance on the ruling of the Bombay High Court in the case of Rotogravurs v. Union of India and also the ruling of the Calcutta High Court in the case of Titagarh Paper Mills Co. Ltd. v. Union of India .
3. Heard Shri JP Gregory, the learned SDR.
4. We have carefully considered the submissions and gone through Section 11B and also the amendment to the said Section by Act 40/91. It is clear that refund would not be made if duty of excise paid by a manufacturer had been passed on to the consumer or to any other person and this amendment was put into the Statute only on 20.9.1991 and would be operative prospectively where the refund is yet to be paid and where an order has been passed earlier. In the present case, pursuant to the order of refund, the refund had been made on 19.8.1991 well before the amendment came into force. We also prima facie take note of the fact that order by the AC was passed on 19.8.1991 as the law stood at that time and his order cannot be said to be incorrect or illegal and therefore the Reviewing authority while exercising the power should only primarily consider the legality or propriety of the order passed on the date as the law stood at the relevant time and not with reference to subsequent amendment. We also take support to this view from the rulings of the High Courts of Bombay and also Calcutta cited supra and keeping in mind the said rulings, we grant stay of the operation of the impugned order on prima facie ground pending appeal.
(Pronounced in the open Court).