1988 (5) TMI 165

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....of Rs. 5,18,111.10 paid on account of supply of Benzene to M/s Hindustan Polymer Ltd., Vizag. The refund in respect of the excise duty alleged to have been paid by the appellant on Benzene is for the period 1-2-1977 to 26-1-1978. According to the learned Adjudicating authority, the refund claim was preferred on 6-6-1978 and according to the appellant, it was preferred on 5-5-1978. The claim was rejected by the authorities below on grounds of limitation under Rule 11 of the Central Excise Rules, 1944, as it then stood. This appeal arises out of the impugned order rejecting the appellant's refund claim. 2. Shri Mukherjee, the learned Counsel for the appellants submits that the refund claim was submitted only on 5-5-1978 and not on 6-6-1978....

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....ary show cause notice, also proceeded on the same basis. Though the appellant has given replies to the show cause notices on 13th September, 1978 and 14th December, 1981, admittedly, the appellant had not contended therein that the refund application was preferred on 5-5-1978, as it is now contended. It was correctly submitted by the learned Departmental Representative that this plea was also not taken before any of the two authorities at any time. We, therefore, do not entertain this plea, and, therefore, proceed on the basis that the refund application was made on 6-6-1978, as held by the original authority. 5. The learned Departmental Representative fairly concedes that as the law, as it then stood, at the relevant time, Rule 11 read ....

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.... considered. The learned Counsel also made an attempt to contend that under Rule 11 no period of limitation is applicable unless the duty was paid through inadvertence, error or misconstruction and relied on [Annexure I to Ministry's letter F.No. 331/48/78 TRU Copy of Ministry's letter No. 4/1/78-CX. I, dated 23-8-1978 addressed to the Collector of Central Excise : Madura-1]. 7. At this stage, we put a specific query to the learned Counsel as to the period of limitation that would be applicable under Rule 173J, which rule the appellant is specifically contending as the one applicable. The learned Counsel fairly conceded that under Rule 173J, the period of limitation is one year and Rule 173J is applicable in cases of manufactures covered....