An authority like the Assistant Collector under the Act has no jurisdiction to refuse refund of excise duty illegally collected from an assessee by invoking the theory of Unjust Unrichment.

JUDGMENT :

G.B. Patnaik, J. - An interesting question of law that arises for consideration in this writ application is whether a statutory authority exercising his powers under the provisions of a statute can refuse relief to an applicant who is otherwise entitled to the same by invoking the principle of "unjust enrichment". It is necessary to briefly state facts to indicate as to how the aforesaid question crops up for consideration.

2. The petitioner No. 1 is a manufacturer of cement and has its licensed factory at Rajgangpur in the district of Sundergarh where it manufactures cement. During the relevant period, the petitioner had a valid licence for manufacture of "special cement". When the petitioner submitted the price list for approval of the Assistant Collector of Central Excise, Rourkela, as required under Rule 173C of the Central Excise Rules, 1944 (hereinafter referred to as the "Rules"), it was contended that the cost of packing in respect of special cement should be excluded from the assessable value u/s 4 of the Central Excises and Salt Act, 1944 (hereinafter referred to as the "Act"). The Assistant Collector, Central Excise & Customs (opp. party No. 2), rejected the petitioner's contention and included the cost of packing in the assessable value and approved the price list. Against the said order of opp. party No. 2, the petitioner carried appeals to the Collector (Appeals), who is the appellate authority under the Act. The said appellate authority (opp. party No. 1) upheld the contention of the petitioner and held that the cost of packing in respect of special cement was not includible in the assessable value of the cement. In coming to the aforesaid conclusion, the appellate authority took into consideration the Tariff Advice No. 46/79 dated 28-9-1979 and the Government of India's decision in the case of Birla Cement Works. Against this decision of the appellate authority, opp. party No. 1, the Assistant Collector preferred second appeals before the Customs, Excise & Gold (Control) Appellate Tribunal (for short, C.E.G.A.T.). The said second appeals were dismissed and the conclusion of the appellate authority was confirmed and thus the conclusion of the Collector (Appeals) that the value of the packing cannot be included in the assessable value of the special cement has become final. Since the petitioner had paid the duty in accordance with the price list approved by the Assistant Collector, subsequent to the decision of the Collector (Appeals), an application u/s 11B of the Act was filed for refund of the duty. On receipt of the said application, the Assistant Collector issued a notice to the petitioner to show cause as to why the petitioner's application for refund [should] not be rejected on the ground of unjust enrichment, which has been annexed as Annexure-1. The petitioners, therefore, have approached this Court in this writ application.

3. It is undisputed that the application for refund u/s 11B of the Act has been filed in time. In view of the conclusion of the appellate authority, it is also undisputed that the duty in respect of which the refund has been claimed by the petitioner was collected illegally. In the premises, as aforesaid, the only question that arises for consideration is whether the Assistant Collector who is otherwise bound to refund the duty illegally collected can refuse the prayer of the petitioner on the ground that allowing such refund would result in unjust enrichment of the petitioner.

4. Mr. Rath appearing for the petitioners contends that the Assistant Collector while exercising his power u/s 11B of the Act cannot take recourse to application of principle of unjust enrichment and refuse an application on that basis, as Section 11B in terms does not authorise the authority to reject the application on such ground. In other words, according to Mr. Rath, the powers of the authority under a statute being circumscribed by the provisions contained therein, he cannot go beyond those provis