Section 11D of the Central Excises and Salt Act, 1944 is not retrospective in its operation and the petitioners would be entitled to a refund of the excess collection if they were able to prove that they had not passed on the excess collection to the consumers.

K.A. SWAMI, CJ

These Appeals are preferred against a common order dated 24-1-1994 passed by the learned single Judge in W.P. Nos. 933 and 934 of 1994.

2.In the Writ Petitions, the petitioners sought for quashing the order dated 6-1-1994 bearing No. E/Misc/713/MAS (M/Order No. 11/94) passed by the second respondent. The petitioner appellant also sought for quashing another order of the same date passed by the second respondent in E/Misc/713/93/MAS (M/Order No. 11/94) and further sought for a direction to hear and decide the appeals, without insisting for pre-deposit of Rs. 6, 78, 562.30, pursuant to the order of the first respondent in O.R. No. 58 of 1991, dated 19-3-1993.

3.Before we consider the contentions raised in these Appeals, necessary facts are to be adverted to. The petitioners are engaged in the manufacture of cables and they are registered as small scale units. They are required to pay excise duty onad valorembasis at 15% for clearance upto Rs. 75, 00, 000/- and at 25% for clearance from Rs, 75, 00, 000/- to Rs. 2, 00, 00, 000/-. Beyond the limit of rupees two crores, they do not have the benefit of concessional duty.

4.It is not disputed by the petitioners-appellants that they did collect the excise duty from the purchasers at 25 per cent on the sales below Rs. 75 lakhs also, even though they were required to pay excise duty only at 15% upto Rs. 75 lakhs.

4.1A show cause notice dated 14-2-1992 was issued by the first respondent, demanding the payment of Rs. 6, 78, 562.30 being the excess collection of excise duty from the consumers during the period 1-4-1990 to 9-6-1990, invoking Section 11D of the Central Excises and Salt Act, 1944, (hereinafter referred to as the Act, ). It may be pointed out that this provision along with the other concomitant provisions was introduced with effect from 20th September, 1991 by the Amending Act No. 40 of 1991. The petitioners-appellants have collected 25% on all the amounts during the period 1-4-1990 to 9-6-1990. The excess collection representing the Excise Duty was to the tune of Rs. 6, 78, 562.30 and this amount of Rs. 6, 78, 562.30 represents excess collection of excise duty is not in dispute.

4.2The petitioners-appellants, pursuant to the show cause notice, submitted a reply. After hearing the petitioners-appellants, the first respondent has determined the sum payable by the appellants at Rs. 6, 78, 562.30, which amount, as already pointed out, the appellants did not and even now do not dispute that it was collected from the customers, as representing the excise duty, which was in excess of the excise duty payable by them.

4.3Aggrieved by the order of the first respondent, an appeal has been preferred before the CEGAT. The appeal is still pending on the file of the CEGAT. During the pendency of the appeal, CEGAT has directed the appellants to deposit the amount. The appellants did not deposit the amount. They made an application requesting that the appeal be heard without insisting for deposit of the amount. The CEGAT has rejected the request. Therefore, both the orders are challenged by filling the aforesaid two writ petitions.

4.4Learned single Judge has held that as the collections in a sum of Rs. 6, 78, 562.30 represent the excise duty is not in dispute and as, in the event the appellants succeed before the CEGAT they would be entitled to refund of the amount deposited, there is no justification for interfering with the order of the CEGAT. Learned single Judge has also repelled the contention of the learned counsel for the appellants based on a decision of the Supreme Court inIncome-Tax Officerv.M.K. Mohamed Kunhi.

5.It is urged before us by the learned counsel for the appellants that in the light of the provisions contained in Section 11B and 11D of the Act, if the appellants deposit the amount, even if they succeed in the appeal, they would not be entitled to seek refund, nor it would be permissible in law to direct return of the amount, therefore, if the order of th