Customs, Excise and Gold Tribunal - Delhi
Peria Karamalai Tea And Produce Co. Ltd. vs Collector Of Central Excise on 21 November, 1985
Equivalent citations: 1986(7)ECC9, 1986(6)ECR404(TRI.-DELHI), 1986(23)ELT174(TRI-DEL)
ORDER K.L. Rekhi, Member (T)
1. The appellants are aggrieved by the rejection of their refund claim on the ground of time bar of Rule 11 of the Central Excise Rules, 1944. Their claim arose under exemption notification No. 198/76-Central Excises dated 16-6-1976 (commonly known as incentive rebate for higher production).
2. We have heard both sides and have carefully considered the matter. We observe that the appellants' base clearances had been approved by the Assistant Collector on 29-4-1977. They crossed the base figure on 25-2-1978, Therefore, from this date onwards, they were entitled to pay duty on their clearances at the concessional rate but they went on paying it at the normal higher rate. They say that they did it because of the prevailing practice but are unable to substantiate this alleged practice. Be that as it may, the law gave them another remedy under Rule 11-to claim refund of the duty paid in excess. But the rule laid down the condition that such refund should be claimed from the Assistant Collector within six months from the payment of the excess duty. The appellants' refund claim related to the period from 25-2-1978 to 31-3-1978. It was lodged with the jurisdictional Superintendent of Central Excise on 13-9-1978 who forwarded it to the Assistant Collector on 27-9-1978. The Assistant Collector rejected the entire claim as time barred, counting the limitation from 25-2-1978. But applying the time limit of six months with reference to the date of receipt of the claim in the Assistant Collector's office, the Appellate Collector allowed their claim for the last few days of March 1978 (27-3-1978 to 31-3-1978) and rejected the rest.
3. The appellants' first prayer is that the limitation should be reckoned from the date of receipt of their claim by the jurisdictional Superintendent (13-9-1978). For this they rely on this Tribunal's order reported at 1985 (21) E.L.T-281 (Tribunal)-Shri Ambica Khandsari Udyog v. Collector of Central Excise, Meerut. Inasmuch as their claim was entertained by the said Superintendent and after necessary verification at his end he forwarded the claim to his next superior-the Assistant Collector, who was the sanctioning authority, we find the reliance well-taken. We, therefore, agree with the appellants that their claim for the period 14-3-1978 to 26-3-1978 was also within time.
4. The appellants pray for acceptance of the remaining part of their claim on two further grounds -
(1) There was no error on their part; as such Rule 11 did not apply.
(2) It had been held by the various High Courts and the Supreme Court that the State was not entitled to retain any monies not due to it.
The first ground has already been answered by the Appellate Collector. No doubt, prior to 6-8-1977, Rule 11 concerned itself with those claims for refund which had arisen as a result of inadvertence, error or misconstruction. But the rule was amended on 6-8-1977 to say :
"(1) Any person claiming refund of any duty paid by him may make an application for refund of such duty to the Assistant Collector of Central Excise before the expiry of six months from the date of payment of duty."
The revised rule has application to the appellants' case as the rule was in general terms and it applied to all claims for refund of duty. Further, the delay in filing their claim was clearly due to the appellants' own negligence. As regards the plea of equity, we observe that the same can be canvassed before the High Court and the Supreme Court who are vested with high prerogative powers. So far as the authorities constituted under the Act are concerned, they are bound by the period of limitation provided for in the Act [1985 E.C.R. 289 (S.C.)]-Miles India Ltd. v. Assistant Collector of Customs'}. Further, such authorities cannot also invoke the discretionery power of the Limitation Act, 1963 to relax the time limit because the Limitation Act applies only to proceedings before Courts and not to proceedings before quasi-judicial Tribunals or executive authorities [1985 (22) E.L.T. 327 (S.C.)- Sakuru v. Tanaji]. We, therefore, cannot allow that part of the appellants' refund claim which is hit by the limitation of Rule 11.
5. The only ground on which the learned representative of the department opposed the appellants' claim in toto is that Rule 11 did not apply to the facts of the case and that the only remedy available to the appellants was to file a civil suit. We have already extracted in the preceding paragraph the rule as revised and as applicable during the material period. We have also stated that the revised rule was worded in general terms and it did not suffer from certain inhibitions of the old rule. We find nothing in the revised rule by which it could be said that it did not cover the appellants' case. We, therefore, see no merit in the department's plea that the appellants should have to go in for a civil suit even for that portion of the refund claim which was within the time limit of rule 11. Incidentally, we observe that the Appellate Collector too came to the same conclusion and his order (insofar as it allowed the claim for the period from 27-3-1978 to 31-3-1978) has not been challenged by the department by way of revision or appeal.
6. Summing up, we allow the claim for the period from 14-3-1978 to 26-3-1978. We clarify that as a result of our order and the earlier order of the Appellate Collector, the appellants would be entitled to receive in all the refund of excess duty paid during the period from 14-3-1978 to 31-3-1978 (inclusive). We direct that such refund should be granted to them. The appeal is otherwise rejected.