1990 (12) TMI 223 - AT - Central Excise

Appellant's Claim Dismissed as Time-Barred Under Section 11B

The Tribunal majority upheld the lower appellate authority's decision, dismissing the appellant's claim as barred by limitation. Despite a dissenting ... Refund of duty recovered without authority of law Issues Involved:1. Whether the refund claim of the appellant is barred by limitation.2. Whether the payment of duty was made under protest.3. Whether the duty paid can be considered as a deposit and thus refundable.4. Whether the Department collected duty twice over on the same goods under different tariff items.5. Whether the Tribunal can extend relief beyond the statutory period of limitation.Issue-wise Detailed Analysis:1. Whether the refund claim of the appellant is barred by limitation:The core issue in this appeal is whether the appellant's refund claim is barred by limitation. The appellant filed a refund claim for Rs. 93,174.95 on 20-1-1981, arguing that duty cannot be levied and collected under two different tariff items. The Assistant Collector rejected this claim, citing that it was not filed within the prescribed 6-month period, and the payment was not made under protest. The Collector (Appeals) upheld this decision, leading to the current appeal.2. Whether the payment of duty was made under protest:The appellant contended that the amount should be presumed to have been paid under protest since the Superintendent debited the amount unilaterally without the assessee's consent. However, the Tribunal found no evidence supporting this claim. The records did not show that the payment was made under protest, and the plea of protest was raised only at the stage of reply to the show cause notice.3. Whether the duty paid can be considered as a deposit and thus refundable:The appellant argued that the amount paid should be treated as a deposit, which is suo motu repayable by the Department. The Tribunal, however, emphasized that the limitation provided in Section 11B of the Central Excise and Salt Act, 1944, must be adhered to, and the Tribunal cannot go beyond the 6-month limitation contained therein. The Tribunal cited several precedents, including the Supreme Court's decision in Miles India Ltd. v. Appellate Collector of Customs, which upheld that claims for refund must be made within the statutory period.4. Whether the Department collected duty twice over on the same goods under different tariff items:One judge, G. Sankaran, dissented, arguing that the Department had indeed collected duty twice on the same goods under different tariff items. He pointed out that the duty collected by the debit entry should have been refunded or adjusted when the adjudication proceedings concluded. He proposed that the limitation in Section 11B should not apply in this case, and the amount should be refunded to the appellants.5. Whether the Tribunal can extend relief beyond the statutory period of limitation:The majority of the Tribunal members held that the Tribunal is bound by the statutory period of limitation and cannot extend relief beyond it. They cited various judgments, including the Supreme Court's decision in CCE v. Doaba Co-operative Sugar Mills, which held that the limitation provided under the Central Excise Act or rules made thereunder is applicable, and authorities functioning under an Act are bound by its provisions.Final Judgment:The majority of the Tribunal upheld the findings of the lower appellate authority and dismissed the appeal, concluding that the refund claim was indeed barred by limitation. The dissenting opinion by G. Sankaran proposed that the refund should be allowed, but this view did not prevail. Consequently, the appeal was dismissed.