Union of India v. Tube Products of India — 1997 DIGILAW 812 (MAD)

Judgment :- RAJU, J. The above writ appeal has been filed against the order of a learned single Judge of this Court dated 27-9-1988 in W.P. No. 1833 of 1982 whereunder the learned single Judge of this Court was pleased to allow the writ petition filed seeking for the issue of a writ ofcertiorarified mandamusto call for and quash the proceedings of the second respondent - Collector of Central Excise in C.N. III/10/488/81-IA (RC), dated 6-12-1982 and consequently, restrain the second respondent from collecting the amount of duty to the tune of Rs. 12, 78, 921.69 already refunded to the writ petitioner/respondent herein. 2.The relevant facts necessary for appreciating the issue raised before us are, that the respondent are manufacturers of iron and steel products and they held Central Excise licence for the same under Tariff Item 26AA and in addition, they also manufactured during the relevant point of time in their factory, (1) Collecting Electrodes Sections. (2) Punched `C' Section. (3) Shutter Lath Section and (4) Fork Blades for cycles. and the item shutter lath was manufactured out of cold rolled strips. When Tariff Item 68 was introduced in the year 1975, the respondent were said to have been advised to pay duty under Tariff Item 68 in respect of item shutter lath which was paid by them under protest. Thereupon, the Assistant Collector, Madras-III Division issued an order dated 17-7-1976 classifying the said item under Tariff Item 68. Aggrieved, the assessee filed an appeal before the Appellate Collector, who by his order dated 23-12-1977 set aside the order of the Assistant Collector with a direction to readjudicate the case and passed a speaking and reasoned order to meet the ends of justice. Thereupon, the Assistant Collector, Madras-III Division, after issuing a show cause notice and considering the representation of the assessee, passed an order dated 23-2-1979 taking the view that the item in question was classified under Tariff Item 68 of the Central Excise Tariff. Thereupon, the Assistant Collector, Madras-III Division, after issuing a show cause notice and considering the representation of the assessee, passed an order dated 23-2-1979 taking the view that the item in question was classified under Tariff Item 68 of the Central Excise Tariff. Once again, the matter has been pursued by the assessee on appeal to the Appellate Collector who by his order dated 16-1-1980 came to the conclusion that the process of manufacture of shutter lath section has to be studied in detail and remitted the matter to the Assistant Collector with a direction therefor and the Assistant Collector, Madras-III Division, after visiting the factory on 25-4-1980 and studying the process of manufacture of shutter lath in detail, passed an order dated 29-4-1980 classifying the said item under Tariff Item 26AA(ia) of the Central Excise Tariff. On the basis of the said orders and on the claims for refund made on 14-5-1980 for the refund of the duty paid on shutter lath sections under Tariff Item 68 during the period from March, 1975 to May, 1980 since the product has been subsequently found to be classified under Tariff Item 26AA(ia) and therefore, became completely exempted from duty by virtue of a Notification No. 75/67, dated 20-5-1967. Consequently, the refund has been allowed to the tune of Rs. 12, 78, 921.69 and a sum of Rs. 6, 47, 497.98 came to be refunded after adjusting a sum of Rs. 6, 31, 423.71 towards another demand pending with the Department against the assessee. In a communication dated 29-12-1980 enclosing a cheque dated 29-12-1980. 3.Thereafter, the Collector of Central Excise, Madras, by his show cause notice issued under Section 35A(2) of the Central Excises and Salt Act, 1944, hereinafter referred to as the `Act', proposed to set aside the order of the Assistant Collector on the ground that the product in question really falls and is assessable under Tariff Item No. 68 and the same will not fall under Tariff Item 26AA(ia) calling upon the assessee as to why the proceedings dated 29-12-1980 should not be set aside and appropriate order passed. 4.It may be pointed out at this stage since much turns on the said factual issue that the Collector proposed to revise the order dated 29-12-1980 which as could be seen from the typed set of papers was merely a communication enclosing a cheque dated 29-12-1980 for Rs. 4.It may be pointed out at this stage since much turns on the said factual issue that the Collector proposed to revise the order dated 29-12-1980 which as could be seen from the typed set of papers was merely a communication enclosing a cheque dated 29-12-1980 for Rs. 6, 47, 497.98 calling upon the assessee to acknowledge the receipt of the same. The respondent assessee filed his representation and objected to the proposals contained in the show cause notice. Thereupon, the Collector of Central Excise, Madras, by his order dated 6-2-1982 confirmed his proposals by coming to the conclusion that shutter lath sections which are obtained by the process of rolling have different commercial identity and are known in the trade by a special identifiable name and therefore, they should rightly be classified under Tariff Item 68 and not under Tariff Item 26AA(ia). Thereupon, as a consequence, the Collector proposed to set aside the order of the Assistant Collector dated 29-12-1980 in sanctioning the refund as irregular and ordered that an amount of Rs. 12, 78, 921.699 said to be the incorrect refund granted to the respondent should be recovered under Section 11A of the Central Excises and Salt Act, 1944. 5.Aggrieved, the respondent has filed the above writ petition seeking for the relief already noticed supra. 12, 78, 921.699 said to be the incorrect refund granted to the respondent should be recovered under Section 11A of the Central Excises and Salt Act, 1944. 5.Aggrieved, the respondent has filed the above writ petition seeking for the relief already noticed supra. The assessee both in their affidavit filed in support of the writ petition as also at the time of hearing of the writ petition before the learned single Judge urged that the order of the Collector does not seem to set aside the earlier orders of the Assistant Collector, Central Excise dated 29-4-1980 according classification of the goods in question under Item 26AA(ia), that the refund was merely a consequential action which inevitably followed such classification and cannot be considered to be any independent decision or order and so long as the order of the Assistant Collector dated 29-4-1980 was not revised, no exception could be taken to the refund and under the pretext of revising a communication in the form of a letter enclosing the cheque for a part of the amount refunded, the orders dated 29-4-1980 cannot be nullified and the order of the Assistant Collector dated 29-4-1980 also was beyond the reach of the revisional powers of the Collector under Section 35A, the same having been passed more than one year prior to the invocation of the revisional powers, which was in this case by the issue of a show cause notice dated 24-6-1981. While contending that what the Collector cannot do directly he cannot do indirectly, it was also urged that Section 11(1) cannot be invoked by the Department until the order of the Assistant Collector dated 29-4-1980 is reviewed or set aside. While contending that what the Collector cannot do directly he cannot do indirectly, it was also urged that Section 11(1) cannot be invoked by the Department until the order of the Assistant Collector dated 29-4-1980 is reviewed or set aside. Learned single Judge though adverted to all these aspects in addition to the other points also raised as grounds of challenge to the impugned proceedings, proposed to sustain the claim of the assessee on the legality or otherwise of the classification made of the product in question as falling under Tariff Item 26AA(ia) for the simple reason that not only the Assistant Collector by his proceedings dated 29-4-1980 on a local inspection, so classified the goods under the said entry but despite the order of the Collector under challenge and the view taken by him, in the counter affidavit filed during the course of the hearing of the writ petition itself, it has been conceded in the counter affidavit itself filed by the Department that the shutter lath sections would fall under Item 26AA(ia). It is useful to advert to the relevant conclusion of the learned single Judge in paragraph 8 of his order, which is as follows :- "In the instant case, the Collector of Central Excise has initiated action under Section 35A of the Act by issue of a show cause notice dated 24-6-1981. Obviously when he issued such show cause notice on 24-6-1981, a period of one year had already lapsed from 29-4-1980 when the Assistant Collector passed final orders classifying the items manufactured by the petitioner as one falling under Tariff Item 26AA(ia). Therefore, by purporting to exercise powers under Section 35A of the Act, the Collector of Central Excise had no jurisdiction to interfere with the orders dated 29-4-1980 because bar of limitation had set in. But the same time, by the impugned orders, the Collector of Central Excise had rendered a finding that the Tariff Item applicable is 68 and not 26AA(ia). But the same time, by the impugned orders, the Collector of Central Excise had rendered a finding that the Tariff Item applicable is 68 and not 26AA(ia). This reasoning of the Collector of Central Excise in the impugned orders dated 6-2-1982 is wholly unsustainable and his conclusion that Tariff Item 26AA(ia) is not applicable is contrary to the very admission in the counter affidavit filed in this case and consequently, that portion of the order of the Collector of Central Excise holding that the Tariff Item applicable to the shutter lath sections manufactured by the petitioner would be 68 is incorrect and consequently, that portion of the order is set aside" * . Of course, in dealing with the other contentions, relating to Section 11A and 11B, learned single Judge was of the view that by virtue of the statutory entitlement under Section 11B of the Act, the assessee had an indefeasible right to refund, and thereby ultimately allowed the writ petition. Hence the above writ appeal by the Department. 6.Much developments has taken place subsequent to the filing of the writ appeal due to certain declaration of law by Courts in the teeth of claims for refund under the provisions contained in the Act and the relevant scope and applicability of Section 11A and 11B. The Parliament has enacted Central Excise and Customs Laws (Amendment) Act, 1991 inserting certain provisions to both the Central Excise Act and the Customs Act providing for the manner of consideration of claims and the adjudication of rights of parties as also providing for the constitution of Consumer Welfare Fund and crediting of amounts to the said fund and utilisation thereof. The constitutional validity of these provisions came up for challenge before a Constitution Bench of 9 learned Judges of the Apex Court and Their Lordships of the Apex Court while upholding the constitutional validity of the provisions laid down certain norms and guidelines which operate as limitation to the extent indicated therein on the rights of the assessees and the Department as well, and it is necessary for us to advert to paragraph 99(ix), (x), (xi), (xii) and 100 of the decision reported in Mafatlal Industries Ltd. v. Union of India 1996 (11) JT 283 , 1998 (111) STC 467, 1996 (9) Scale 457 , 1997 (5) SCC 536 , 1997 (68) ECR 209, 1997 (S3) SCC 316, 1997 (89) ELT 247 , 1997 (17) RLT 906, 2002 (83) ECC 85, 1997 (1) Supreme 684 (S.C.) which is as follows : "(ix) The amendments made and the provisions inserted by the Central Excise and Customs Law (Amendment) Act, 1991 in the Central Excises and Salt Act and Customs Act are constitutionally valid and are unexceptionable. (x) By virtue of sub-section (3) to Section 11B of the Central Excises and Salt Act, as amended by the aforesaid Amendment Act, and by virtue of the provisions 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 provisions whereunder the levy was created) have to be preferred and adjudicated only under the provisions of the respective enactment. 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 manifested by the provisions of the Act. The writ petition would naturally be considered and disposed of in the light of and in accordance with the provisions of Section 11B. 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. The writ petition would naturally be considered and disposed of in the light of and in accordance with the provisions of Section 11B. 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 over ride it. The power under Article 226 is conceived to serve the ends of law and not to transgress them. (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 thatUnion of Indiav.Jain Spinners 1992 AIR(SC) 1993, 1992 (43) ECR 1, 1992 (61) ELT 321 , 1992 (5) JT 386 , 1992 (2) Scale 541 , 1992 (4) SCC 389 , 1992 (S1) SCR 484 andUnion of India v.I.T.C. 1993 (S4) SCC 326, 1993 AIR(SC) 2135, 1993 (48) ECR 5, 1993 (67) ELT 3 , 1993 (3) Scale 169 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.(xii) Section 11B 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 11B is a device to retain the illegally collected taxes by the State. This is equally true of Section 27 of the Customs Act, 1962. 100. We take note of the fact that writ petitions/writ appeals/suits claiming refund of excise duties/customs duties may be pending as on today. They are liable to fail on the ground of maintainability by virtue of the law declared herein. This is equally true of Section 27 of the Customs Act, 1962. 100. We take note of the fact that writ petitions/writ appeals/suits claiming refund of excise duties/customs duties may be pending as on today. They are liable to fail on the ground of maintainability by virtue of the law declared herein. Since the law is being declared and clarified by us now, we make the following directions : in cases where writ petitions, writ appeals (by whatever appellation they are called) or suits (at whatever stage they may be, as on today) are pending as on today, and provided they have not already taken proceedings for refund under the Act, it shall be open to the petitioners/appellants/plaintiffs to file applications for refund under Section 11B within sixty days from today. If the applications are so filed by them, they shall not be rejected on the ground of limitation and shall be dealt with according to law. We make it clear that this direction applies only to petitioners/appellants/plaintiffs/in pending writ petitions/writ appeals/suits (pending as on today), as explained hereinabove, and not to any others. The applications so filed under Section 11B shall be disposed of under Section 11B, as interpreted herein, and in accordance with law. It is obvious that if any of such petitioners/appellants/plaintiffs have already taken proceedings for refund under the Act and having failed therein - either partly or wholly - have resorted to writ petition or suit, they shall not be entitled to the benefit of this direction'. 7.Relying upon the said decision of the Supreme Court, Mr. K. Jayachandran, learned Additional Central Government Standing Counsel appearing for the appellants - Department, contended that the eligibility or otherwise of the assessee in this case has got to be determined under the provisions of the Central Excise and Customs Laws (Amendment) Act, 1991 and considered thus, the pendency of the writ appeal in this Court would make the claim relating to the refund a pending issue, which requires to be adjudicated in the light of the amended provisions and therefore, the matter requires to be relegated to the authorities for consideration afresh of the eligibility or otherwise of the assessee for refund under the amended provisions. It was also contended for the appellants - Department that the learned single Judge was in error in holding that the second appellant had not reviewed the order of the Assistant Collector dated 29-4-1980 and that if a particular portion of the order alone is quashed, it would lead to, and result in "unjust enrichment", which is not permissible in law. Argued the learned Counsel for the appellant further that the impugned order of the second appellant - Collector constitutes valid exercise of revisional power under Section 35A of the Act and the order under revision made by the Assistant Collector was, therefore, rightly set aside by the revisional authority and consequently, the order of the learned single Judge has to be set aside. 8.Per contra, Mr. Habibullah Badsha, learned Senior Counsel for the respondent - assessee while placing reliance upon the law declared by the Apex Court inMafatlal Industriescase 1996 (11) JT 283 , 1998 (111) STC 467, 1996 (9) Scale 457 , 1997 (5) SCC 536 , 1997 (68) ECR 209, 1997 (S3) SCC 316, 1997 (89) ELT 247 , 1997 (17) RLT 906, 2002 (83) ECC 85, 1997 (1) Supreme 684 (S.C.)] (supra), particularly paragraph 99(x), contended that inasmuch as the revision proceedings have finally got terminated and became final, they cannot be reopened for applying the amended provisions of 1991 Act and consequently, there are no merits whatsoever in the stand taken for the appellants - Department that the matter has to be relegated to the authorities under the Act for consideration afresh of the question of eligibility of the respondent for refund. The learned Senior Counsel for the respondent - assessee further contended that the learned single Judge was right in his conclusions that under the pretext of exercising revisional powers under Section 35A of the Act as against the order passed on 29-12-1980, which is merely a communication enclosing the cheque, the substantial order relating to the classification being made on 29-4-1980, as a consequence of which the refund came to be effected, cannot be interfered with or annulled and therefore, the appeal is bereft of any merits and the same is liable to be dismissed. 9.We have carefully considered the submissions of the learned Counsel on either side. 9.We have carefully considered the submissions of the learned Counsel on either side. In our view, the stand taken for the appellants - Department on the basis of the amended provisions of the Act, particularly first proviso to Section 11B which obliges an application for refund made before the commencement of 1991 amendment Act be deemed to have been made under the amended provisions and to be dealt with in accordance with the provisions of sub-section (2) as substituted by the amendment Act, has no merit on the facts and circumstances of the case. To the case on hand, Section 11B prior to amendment or as amended has no relevance or application, since nothing remains to be done in respect of the claim for refund and even before the exercise of revisional powers by the 2nd appellant, the amount was actually refunded and the refund became complete in all respects with the cheque issued and enclosed to the assessee along with the letter dated 29-12-1980 and the assessee also encashed the same and appropriated the amount to themselves. 10.InMafatlal Industriescase 1996 (11) JT 283 , 1998 (111) STC 467, 1996 (9) Scale 457 , 1997 (5) SCC 536 , 1997 (68) ECR 209, 1997 (S3) SCC 316, 1997 (89) ELT 247 , 1997 (17) RLT 906, 2002 (83) ECC 85, 1997 (1) Supreme 684 (S.C.)] (supra) it is held as follows :- 100. We take note of the fact that writ petitions/writ appeals/suits claiming refund of excise duties/customs duties may bependingas on today. They are liable to fail on the ground of maintainability by virtue of the law declared herein. Since the law is being declared and clarified by us now, we make the following directions : in cases where writ petitioners, writ appeals (by whatever appellation they are called) or suits (at whatever stage they may be, as on today) arependingas on today, and providedthey have not already taken proceedings for refund under the Act, it shall be open to the petitioners/appellants/plaintiffs to file applications for refund under Section 11B within sixty days from today. If the applications are so filed by them, they shall not be rejected on the ground of limitation and shall be dealt with according to law. We make it clear that this direction applies only to petitioners/appellants/plaintiffs in pending writ petitions/writ appeals/suits (pending as on today), as explained hereinabove, and not to any others. If the applications are so filed by them, they shall not be rejected on the ground of limitation and shall be dealt with according to law. We make it clear that this direction applies only to petitioners/appellants/plaintiffs in pending writ petitions/writ appeals/suits (pending as on today), as explained hereinabove, and not to any others. The applications so filed under Section 11B shall be disposed of under Section 11B, as interpreted herein, and in accordance with law. It is obvious that if any of such petitioners/appellants/plaintiffs have already taken proceedings for refund under the Act and having failed therein - either partly or wholly - have resorted to writ petition or suit, they shall not be entitled to the benefit of this direction ". 11.Section 11A of the main Act provided for recovery of duties not levied or not paid or short levied or short paid or erroneously refunded in contrast to Section 11B as it stood prior to the amendment by Act 40/1991, which provided for claims by any person for refund of any duty of excise being made within six months with a proviso that the time taken of six months shall not apply where any duty has been paid under protest. It was also provided therein that where as a result of any order passed in appeal or revision under the Act, refund of any duty of excise becomes due to any person the Assistant Collector may refund the amount to such person without his having to make any claim in that behalf. The Amendment Act 40/1991 introduced amendments to Section 11B of the main Act not only regulating the manner, method and procedure for refund, but also provided that 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) as amended. It is only on a careful consideration of the above, their Lordships of the Apex Court observed that if the refund proceedings have finally terminated in the sense that the appeal period has also expired before the commencement of the 1991 Amendment Act on 19-9-1991, they cannot be re-opened and/or governed by Section 11B(3) as amended [vide para 99 (xi)]. It is only on a careful consideration of the above, their Lordships of the Apex Court observed that if the refund proceedings have finally terminated in the sense that the appeal period has also expired before the commencement of the 1991 Amendment Act on 19-9-1991, they cannot be re-opened and/or governed by Section 11B(3) as amended [vide para 99 (xi)]. In the concurring but separate opinion of His Lordship A.M. Ahmadi, CJI, it was observed that even in respect of decrees and orders that have become final but have not been executed thenon obstanteclause Section 11B(3) would be attracted and the procedure and conditions prescribed in Section 11B will have to be complied with. His Lordship Paripoornan, J. speaking for himself and for Hansaria, J. in a concurring but separate opinion rendered observed in para 149(h) of the report, as follows :-" * (h) Section 11B(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 11B, 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 finding of an application which is contemplated under law, to obtain a refund, after the Amendment Act comes into force. If the said provisions are held applicable, even tomatters 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. Alternatively, it may be stated that duty paid in cases, which finally ended in orders or decrees or judgments of Courts, must be deemed to have been paid under protest and the procedure and limitation etc., stated in Section 11B(2) read with Section 11B(3) will not apply to such cases". 12.Consequently, the claim of the learned Counsel for the appellant/Revenue, that Section 11B of the Act as per amendment Act 40/1991 would apply to the case on hand requires to be considered in the light of the said declaration of law made by the Apex Court. 12.Consequently, the claim of the learned Counsel for the appellant/Revenue, that Section 11B of the Act as per amendment Act 40/1991 would apply to the case on hand requires to be considered in the light of the said declaration of law made by the Apex Court. The order of the Assistant Collector dated 29-4-1980 came to be passed pursuant to the order of remand passed by the Appellate Collector of Central Excise dated 16-1-1980, and the Assistant Collector after local inspection and study of the manufacturing process by the order dated 29-4-1980 classified Shutter Lath to fall under Tariff Item 26AA(ia) of the Central Excise Tariff. As a matter of fact, pursuant to the said orders, three applications for refund were said to have been filed on 14-5-1-980, claiming refund of Rs. 12, 80, 911.46 and the Assistant Collector appears to have sanctioned the refund of Rs. 12, 78, 921.69 alone and after adjusting a sum of Rs. 6, 31, 423.71 due from the assessee issued a cheque for a sum of Rs. 6, 47, 497.98 and forwarded the cheque by his communication dated 29-12-1980. It is under the pretext of revising the proceedings dated 29-12-1980, proceedings were initiated under Section 35A of the Act by issuing a notice dated 24-6-1981 in substance proposing change or alteration of the classifications of the goods and deciding to classify the same under Tariff Item 68. The re-classification could not have been made by the Collector in exercise of his revisional powers under Section 35A of the Act without revising the orders of the Assistant Collector dated 29-4-1980 and this could not have been legitimately possible for the Collector exercising powers under Section 35A unless the powers has been invoked within one year from 29-4-1980 which is not the case before us since the show cause notice itself was issued on 24-6-1981. Section 11A could not also be said to be legitimately invoked against the order dated 29-4-1980. Section 11A could not also be said to be legitimately invoked against the order dated 29-4-1980. If Section 11A is said to have been invoked against the communication dated 29-12-1980, which is only a letter forwarding the cheque and not any proceedings ordering refund as such, it would be an inconsistent plea for the reason that, the show cause notice does not purport to either invoke Section 11A or seek for refund from the assessee, but the final order passed on 6-2-1982 only concludes by stating that the amount refunded should be recovered under Section 11A of the Act. Even such conclusion has been arrived at on the basis of the finding that the classification effected by the Assistant Collector holding that the goods manufactured and sold by the assessee would fall under Tariff Item 26AA(ia) is not correct and that it would only fall under Tariff Item 68, and not on any other ground of infirmity in making refund. Unfortunately, for the Revenue, even the said stand on the classification has also been abandoned by the stand taken before the learned single Judge in the counter filed, admitting the classification made by the Assistant Collector under Tariff Item 26AA(ia) and accepting the same. It is only in this connection, the findings and conclusions recorded by the learned single Judge in paragraph 8 of the order, noticed supra, wherein it has been held that the bar of limitation has set in, becomes relevant. We are in entire agreement with the view expressed and the conclusions arrived at by the learned single Judge in paragraph 8 of his Order and the learned Counsel for the appellants could not successfully demonstrate any infirmity whatsoever in the same or persuade us to take a different view, for any valid or justifying reasons. We are in entire agreement with the view expressed and the conclusions arrived at by the learned single Judge in paragraph 8 of his Order and the learned Counsel for the appellants could not successfully demonstrate any infirmity whatsoever in the same or persuade us to take a different view, for any valid or justifying reasons. 13.Therefore, we are of the view that, the stand taken for the appellants - Revenue that by virtue of Section 11B(3), the Amended provisions of Section 11B would be attracted, has no force or merit of acceptance, for the reason that the refund has been actually effected long before the amendment Act came into force by issuing the cheque on 29-12-1980 and the right of the Department became foreclosed and rights of parties already became finally settled and nothing further remained to be performed or done for refund, which required to be dealt with under Section 11B, as amended by Act 40/1991. 14.The Writ Appeal, therefore, fails and shall stand dismissed. No costs.