All claims for refund, except where the levy is held to be unconstitutional, should be preferred and adjudicated under specific sections of the Central Excise Act and the Customs Act, subject to the claimant establishing that the burden of duty has not been passed on to a third party.

Heard the learned Counsel for the parties. The appellants herein Union of India and Assistant Collector of Central Excise, Madras I Division, who were the defendants in C.S. No. 206 of 1982 have filed this appeal aggrieved by the judgment and decree dated 15-11-1990 passed by the learned single Judge in the said suit. The said suit was filed by the respondent herein claiming decree for refund of a sum of Rs. 2, 71, 754.40 with interest at 12% per annum paid by way of excise duty. Learned single Judge decreed the suit directing the defendants/appellants herein to pay a sum of Rs. 7, 04, 660.96 with further interest at the rate of 6% per annum on a sum of Rs. 2, 69, 036.40 from the date of decree till the date of realisation. In the appeal number of contentions are raised. However, at the hearing learned Counsel for the appellants submitted that in the light of the judgment of the Supreme Court inMafatlal 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.), the suit itself could not be maintained claiming the refund as was done by the plaintiff in the suit. Learned Counsel in particular drew my attention to paragraph 90 of the said judgment at page 327. In the said judgment it is held that all claims for refund except where levy is held to be unconstitutional, to be preferred and adjudicated upon under Section 11B of the Central Excise Act, 1944 or under Section 27 of the Customs Act, 1962 and subject to claimant establishing that burden of duty has not been passed on to third party. Hence the appeal has to be allowed and the judgment and decree under appeal are to be set aside and the suit itself has to be dismissed. Learned Counsel for the respondent/plaintiff was not able to say anything more in the light of the judgment mentioned above, except stating that appropriate orders may be passed.

2.In the light of the judgment of the Apex Court aforementioned, we have no hesitation in allowing this appeal. Accordingly, the appeal is allowed. The judgment and decree dated 15-11-1990 passed by the learned single judge in C.S. No. 206 of 1982 1992 (57) ELT 227 (Mad.)] are set aside and the said suit filed by the plaintiff is dismissed as not maintainable. No costs.