Customs, Excise and Gold Tribunal - Bangalore
Cce vs Vikrant Tyres Ltd. on 23 March, 1995
Equivalent citations: 1995(59)ECR588(TRI.-BANGALORE)
ORDER
S. Kalyanam, Vice-President
1. This reference application is by the department directed against the order of the Tribunal dated 20.9.1990.
2. Sh. Jeyaseelan, the learned DR submitted that the issue for consideration is as to whether the respondents would be entitled to the refund subsequent to the finalisation of the classification by taking out an application before the bar of limitation even when the classification issue is decided in favour of the respondents.
3. Sh. Satish Sundar, the learned Counsel vehemently contended that the rights of the respondents to get refund in terms of Section 11B of the Central Excises & Salt Act, 1944 cannot be whittled down, excepting if there is a statutory power to do so on grounds of limitation. The learned Counsel submitted that the Tribunal in its considered order has referred to the ruling of the Supreme Court in the Elsons Machines case and therefore submitted that no question of law would arise.
4. We have considered the submissions made before us. The respondent's right to refund is admittedly not barred by limitation and therefore, the Tribunal on considering the case of the respondent has observed as under:
We have carefully considered the submissions made before us. The Bench of this Tribunal in the case of "Mysore Acetate and Chemicals" cited supra in the context of a refund under Section 11B in a situation similar to the one arising in the present case, has observed as under:
The Supreme Court in Elson Machines case has repelled the contention of the party that once a classification list is approved, the Excise authority was estopped from taking a different view. The Supreme Court held that "there can be no estoppel against the law and the claim raised before us is a claim based on the legal effect of a provision of law and, therefore, this contention must be rejected". The Calcutta High Court has also in the case of I.T.C. Ltd. and Anr. v. Union of India and Ors. held that Section 11B of the Act has provided the substantive and the machinery provision for refund of any excess duty paid under Section 11B cannot be interpreted in such a way as to render it nugatory and unworkable. In the present case, admittedly the respondent is entitled to the benefit of the notification and consequential refund. It is also admitted that the respondent took out an application for refund before the expiry of the period of limitation under Section 11B of the Act. In such a situation, merely because either due to ignorance or due to inadvertence the respondent did not claim the exemption in the classification, the respondent cannot be denied the right to claim the refund under Section 11B of the Act. Section 11B confers an independent right and a substantive right on the respondent to claim refund if it is otherwise permissible in law. The respondent cannot be estopped from claiming the refund merely on the ground that he did not claim the benefit of the notification in the classification. Since the ruling in Modi Rayon and Silk Mills case is that of two learned Members' of the Special "Bench and the ruling in the Delhi Chemicals case is a concurrent finding of the view of three learned members, we follow the ratio of the Special Bench ruling in the Delhi Chemicals case and hold that the respondent is entitled to the refund amount in question. In this view of the matter, we uphold the finding of the lower appellate authority in the impugned order and dismiss the appeal.
We would also like to note that the judgement of CEGAT Special Bench in Modi Rayon and Silk Mills v. Col. of CE, Meerut 1987 (13) ECR 1 (T) : 1987 (27) ELT 933, has been expressly over-ruled by the Calcutta High Court in the decision cited supra. The Special Bench of the Tribunal on a number of occasions has taken the same view similar to the one taken by the South Regional Bench in the case of M/s. Mysore Acetate and Chemicals referred to above. A similar view has also been taken by the Bench in a situation where the Deptt. resorted to the recovery proceedings Under Section 11 A."
We do not think any question of law arising out of the impugned order in the facts and circumstances of the case as set out above. The reference application is, therefore, rejected.
(Pronounced in open Court)