Page 134 - ELT_15th August 2020_Vol 373_Part 4

468 EXCISE LAW TIMES [ Vol. 373

16. The provisions of Section 27A read thus :
27A. Interest on delayed refunds
If any duty ordered to be refunded under sub-section (2) of section 27
to an applicant is not refunded within three months from the date of receipt
of application under sub-section (1) of that section, there shall be paid to
that applicant interest at such rate, not below 5% and not exceeding 30%
per annum as is for the time being fixed by the Central Government, by no-
tification in the Official Gazette, on such duty from the date immediately af-
ter the expiry of three months from the date of receipt of such application
till the date of refund of such duty :
Provided that where any duty, ordered to be refunded under sub-section
(2) of section 27 in respect of an application under sub-section (1) of that
section made before the date on which the Finance Bill, 1995 receives the
assent of the President, is not refunded within three months from such date,
there shall be paid to the applicant interest under this section from the date
immediately after three months from such date, till the date of refund of
such duty.
17. The provisions of Section 11B of the Central Excise Act that are in
pari material with the provisions of Section 27A of the Customs Act, were chal-
lenged in a batch of writ petitions and a Constitutional Bench of the Supreme
Court in the case of Mafatlal Industries Ltd. and Others v. Union of India and Others,
(1997) 5 SCC 536 = 1997 (89) E.L.T. 247 (S.C.), considered various situations
where refunds would lie under the provisions of the Central Excises and Salt Act,
1944 and the Customs Act, 1962. The nature and character of the refund claims
were also specifically gone into and set out in detail at paragraph 108. Where a
refund is claimed on the ground that the provision under which the duty was
levied were unconstitutional, such claim would stand outside the purview of the
relevant enactment and can be made by way of a suit or a writ petition. In the
words of the Supreme Court :
(ii) Where, however, a refund is claimed on the ground that the provision
of the Act under which it was levied is or has been held to be uncon-
stitutional, such a claim, being a claim outside the purview of the en-
actment, can be made either by way of a suit or by way of a writ peti-
tion. This principle is, however, subject to an exception : Where a per-
son approaches the High Court or the Supreme Court challenging the
constitutional validity of provision but fails, he cannot take advantage
of the declaration of unconstitutionality obtained by another person
on another ground; this is for the reason that so far as he is concerned,
the decision has become final and cannot be reopened on the basis of a
decision on another person’s case; this is the ration of the opinion of
Hidayatullah, C.J. in Tilokchand Motichand and we respectfully agree
with it.
18. Thus, only a refund that is claimed on the ground that a provision
in terms of which it is levied is unconstitutional would stand outside the pur-
view of Section 27A. This is also the basis of my order in the case of Enmas An-
dritz Pvt. Ltd. v. The Assistant Commissioner of Service Tax and Another in W.P. No.
23664 of 2017, dated 6-9-2019 [2020 (38) G.S.T.L. 314 (Mad.)], wherein I had occa-
sion to consider the mandamus sought for by that petitioner directing refund of

EXCISE LAW TIMES  15th August 2020  134