Customs, Excise and Gold Tribunal - Calcutta
Shalimar Group Pvt. Ltd. vs Collector Of Central Excise on 10 April, 1989
Equivalent citations: 1989(25)ECR568(TRI.-KOLKATA)
ORDER
D.C. Mandal, Member
1. Two issues to be decided in this appeal are whether the provisions of Limitation Act applies to the refund under the Central Excises and Salt Act, 1944 and the rules made thereunder and whether for the purpose of computing the time-limit for preferring refund claim the relevant date is the date of payment of duty or the date of assessment on the RT 12 returns.
2. The brief facts of the case are that the appellants filed three refund claims which were received by the Assistant Collector of Central Excise on 15.7.1980. The claims pertain to the following periods:
Period of claim: Amount
(i) January, 1977 to December, 1977 Rs. 1822.51
(ii) January, 1978 to December, 1978 Rs. 4306.90
(iii) January, 1979 to December, 1979 Rs. 20652.69
The Assistant Collector of Central Excise rejected all the three refund claims as time-barred. Appeal was filed against the order of the Assistant Collector before the Collector of Central Excise (Appeals), Calcutta The Collector (Appeals) has disposed of the appeals before him by the impugned order. Appellants contended before the Collector (Appeals) that the refund claims for the years 1977 and 1978 were time-barred under the Central Excise Laws, but since the duty was paid under mistake of law, general law of limitation should be applied and according to the provisions of the Limitation Act, the claims were not time-barred. So far as the refund claim for 1979 is concerned, the appellant's contention before the Collector (Appeals) was that the RT 12 returns for the relevant period were assessed during the period from 16.1. 1980 to 1.10.1980 and the time-limit for preferring the claim should be counted from the dates of assessment on the RT 12 returns and not from the dates of payment of duty. According to them, since the refund claim was received by the Assistant Collector on 15 7.1980, it was not barred by limitation if the time-limit is counted from the dates of assessment on the RT 12 returns. Following the judgment of the Hon'ble Supreme Court in the case of Burmah Construction Co. v. State of Orissa AIR 1962 SC 230, Calcutta High Court judgment in the case of Incheck Tyres Ltd v. Assistant Collector of Customs and Ors. 1979 ELT J-236 and this Tribunals decisions in the case of Afcro Association, Bombay v. Collector of Customs, Bombay 1983 ELT 372 : 1983 ECR 183D (Cegat) and in the case of Miles India Ltd. v. Appellate Collector of Customs, Bombay 1983 ELT 1026 : 1983 ECR 242D, the Collector (Appeals) held that the Law of Limitation was not applicable to the Central Excise cases. He has also held that the time-limit for the purpose of claiming refund should be computed from the date of payment of duty and not from the date of assessment in RT 12 return. He relied on the decision of this Tribunal (West Regional Bench, Bombay) in the case of Indian Oil Corporations. Collector of Central Excise 1983 ELT 1050 : 1983 ECR 839D and the decision of the East Regional Bench of this Tribunal in Order No 456/Cal/83-2888 dated 13.11.1983 in the case of Collector of Central Excise, Calcutta v. Jyoti Glass and Silicate Works, Calcutta. Taking the aforesaid view, the Collector (Appeals) upheld the order of the Assistant Collector and rejected the appeals filed before him. Hence the present appeal before this Tribunal.
3. I have heard the arguments of Shri A.K. Bhowmik, learned consultant for the appellants and Shri M.N. Biswas, learned SDR for the respondent. I have also gone through the records of the case. On the point whether the provision of Limitation Act applies to the cases of refund under the Central Excise Laws, the learned consultant has relied on two judgments, one of Andhra Pradesh High Court, in the case of U. Foam Pvt. Ltd. v. Collector of Central Excise and the other is of East Regional Bench of this Tribunal, in the case of Beverages and Food Products Pvt. Limited v. Collector of Central Excise, Calcutta. In both the aforesaid decisions, it was held that when the duty was paid under mistake of law, time-limit under Limitation Act would apply. Shri Biswas relied on the judgment of Hon'ble Supreme Court in the case of Sakuru v. Tanaji, in which it was held that Limitation Act, 1963 applied only to proceedings before Courts and not to the proceedings before quasi-judicial executive authorities and the Tribunals. He has also relied on Calcutta High Court judgment in the case of Dayapara Tea Co. Ltd. v. Assistant Collector of Central Excise and Ors. in which it was held that the time-limit under Rule 11 of the Central Excise Rules and not under the Limitation Act would apply for refund of Central Excise duty.
4. Law relating to Limitation for claiming refund and also raising demand for duty under the Customs Act and the Central Excises and Salt Act and the rules made thereunder are now well settled by the judgment of Hon'ble Supreme Court. In the case of Miles India Limited v. Assistant Collector of Customs in Civil Appeal No. 1633 of 1984, decided on 6 4 1984 as reported in 1985 ECR 289 (SC), the Hon'ble Supreme Court held as follows:
After the matter was heard for some time and it was indicated that the Customs Authorities, acting under the Act, were justified in disallowing the claim for refund as they were bound by the period of limitation pro vided therefor under Section 27(1) of the Customs Act, 1962, learned Counsel for the Appellant sought leave to withdraw the appeal. We accord their leave to withdraw the appeal but make it clear that the order of the Customs, Excise & Gold (Control) Appellate Tribunal suffers from no infirmity. If really the payment of the duty was under a mistake of law the appellant may seek recourse to such alternative remedy as it may be advised.
Again, in the case of Collector of Central Excise, Chandigarh v. Doaba Cooperative Sugar Mills reported in 1987(37) ELT 478 : 1988 (19) FCR 971 (S.C) the Hon'ble Supreme Court held as follows:
It appears that where the duty has been levied without any authority of law or without reference to any statutory authority or the specific provisions of the Act and the Rules framed thereunder have no application the decision will be guided by the general law and the date of limitation would be the starting point when the mistake or the error comes to light. But in making claims for refund before the Departmental authority, as assessee is bound within four corners of the Statute and the period of limitation prescribed in the Central Excise Act and the Rules framed thereunder must be adhered to. The authorities functioning under the Act are bound by the provisions of the Act. If the proceedings are taken under the Act by the department, the provisions of limitation prescribed in the Act will prevail. It may, however, be open to the department to initiate proceedings in the Civil Court for recovery of the amount due to the department in case when such a remedy is open on the ground that the money received the assessee was not in the nature of refund. This was the view taken by the Tribunal in a previous decision in the case of Miles India Ltd. v. The Assistant Collector of Customs but it was assailed before this Court. The appeal was withdrawn. This Court observed that the Customs Authorities, acting under the Act were justified in disallowing the claim for refund as they were bound by the period of limitation provided therefor in the relevant provisions of the Customs Act, 1962. If really the payment of duty was under a mistake of law, the party might seek recourse to such alternative remedy as it might be advised. See the observations of this Court in Miles India Ltd. v. The Assistant Collector of Customs 1987 (30)-ELT-641 (S.C.) : 1985 ECR 289 Following the judgments of the Apex Court of the country, I hold that the time-limit prescribed in the Limitation Act is not applicable for claiming refund under the Central Excise Rules, 1944/ Central Excises and Salt Act, 1944. The refund claims relating to the years 1977 and 1978 are, therefore, clearly time-barred as held by the authorities below.
5. The next question to be decided is whether the time-limit for claiming refund should be counted from the date of payment of duty or from the date of assessment on the RT 12 returns. The learned consultant has argued that it should be from the date of assessment on the RT 12 returns whereas the learned Departmental Representative has argued that it should be counted from the date of payment of duty. For this argument, Shri Bhowmik has relied on the judgment of the Hon'ble Supreme Court, reported in 1978-ELT (J-416) (SC), in the case of the Assistant Collector of Central Excise, Calcutta v. National Tobacco Co. of India Ltd., the judgment of Calcutta High Court in the case of Krishna Lai Thirani & Co. Ltd. and Anr. v. Collector of Central Excise and Ors. reported in 1978-ELT (J-568) Bombay High Court judgment reported in 1984 ECR 1035 (Bombay), in the case of Oriental Metal Industries v. R.B Said, Supdt. of Central Excise, Bombay and this Tribunal's decisions (Cegat) in the case of Rainbow Industries (P) Ltd., Vadodara v. Collector of Central Excise, Vadodara and in the case of Shri Digvijay Cement Co. Ltd. v. Collector Central Excise, Baroda. Shri Biswas, on the other hand has relied on this Tribunal's decision in the case of Siemens (India) Ltd. Thane and Ors. v. Collector of Central Excise, Thane and Ors. in which it was held that the reference date for commencement of limitation in Self Removal Procedure is the date of debit entry in PL A, i.e., the date of payment of duty. He has stated that in the said case, Tribunal has considered the Supreme Court Judgment reported in 1978-ELT-(J-416) and distinguished the facts of that case from the facts of the case before the Tribunal. On a perusal of the Tribunal's decision relied on by Shri Biswas, I find that the Tribunal considered the judgment of Hon'ble Supreme Court (supra) as well as the judgment of Calcutta High Court 1978-ELT-J-568 in paragraphs 9, 18 and 20 of the order dt, 9.9.1985, and did not follow those judgments on the ground that facts were distinguishable. In paragraph 22 of the said order, the Tribunal held as follows:
Summing up, I am of the opinion that, in the present case, where goods were being cleared under the self-removal procedure, the date of payment of duty by debit entry in the Personal Ledger Account by the assessee was the reference date for the computation of the period of limitation prescribed in Rule 11, read with Rule 173-J. The date of adjustment of the P.L. A. (if any such adjustment took place) consequent on the receipt of a copy of the RT 12 return with the assessment memorandum completed by the proper officer could be another reference date for computation of limitation, but strictly limited to the additional sum of duty, if any, paid as a result of the direction in the assessment memorandum.
I have perused the judgments reported in 1978-ELT-(J-416) (S.C) and 1978-ELT-(J-568) (Cal). Those two judgments are not on the point at issue in the present case. Hence, those are not applicable to the present case.
6. There are other decisions on the same issue, two such decisions are cited below:
(i) Sri Ram Fibres Limited v. Collector of Central Excise Tribunal's Order No. 450/ 1988-Cdt 4.5.1988.
After following this Tribunal's decisions reported in 1986 (25)-ELT-82l Siemens (India) Ltd., Thane and Ors. v. Collector of Central Excise, Thane and Ors. and (Mettur Chemical and Industrial Corporation Ltd. v. Collector of Central Excise, Coimbatore), both of which considered the judgments of Supreme Court reported in 1978-ELT-(J-416), and of Calcutta High Court reported in 1978-ELT (J-568), this Tribunal held that time-limit for limitation under Section 11-B of the Central Excises and Salt Act, 1944 should count from the date of payment of duty and not from the date of RT-12 assessment.
(ii) 1988(12)-E.T.R. 644 (Tribunal) : 1988 (18) ECR 653, Collector of Central Excise Bhubaneswar v. Orissa Cement Limited, Bhubaneswnr.
It was held by the Tribunal in this case that the "Relevant date" for the purpose of Section 11-B of the Central Excises and Salt Act would be the date of payment of duty. If the refund claim was filed after expiry of six months from the date of payment of duty, it was barred by limitation under Section 11B.
7. In view of the foregoing discussions, we hold that the refund claim filed on 15.7.1980 for the period from January, 1979 to December, 1979 is also barred by limitation under Rule 11 of the Central Excise Rules, 1944, as the claim was not filed within six months from the dates of payment of duty. Thus, all the three refund claims were time-barred. There is no infirmity in the orders of the lower authorities. The impugned order is, therefore, upheld and the appeal is dismissed.