2019 (10) TMI 591

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....eld that the appellant should have filed the claim for refund before one year from the relevant date i.e., from the date of payment of duty, which should have been before 05.10.2017 and 04.12.2017 and the assessee having filed the claim only on 15.05.2018, its claim is clearly hit by limitation of time and consequently, is liable for rejection. The above order of rejection was challenged before the Commissioner of G.S.T and Central Excise (Appeals-II), Chennai and the Ld. First Appellate Authority having upheld the rejection, the appellant is before this forum. 3. When the matter was taken up for hearing, Shri. N.K. Bharath Kumar, Ld. Consultant, appeared for the assessee and Shri. K. Veerabhadra Reddy, Ld. Departmental Representative, appeared for the Revenue. 4. Ld. Consultant for the appellant reiterated his arguments urged before the lower authorities and also relied on the decision of the Hon'ble jurisdictional High Court in the case of M/s. 3E Infotech Vs. Customs, Excise & Service Tax Appellate Tribunal, Chennai & anor. reported in 2018 (7) T.M.I. 276 - Madras High Court and the order of the Mumbai Bench of the Tribunal in the case of M/s. Edelweiss Securities Ltd. Vs.....

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....they invariably purported to be exhaustive on the question of refund. Rule 11, as in force prior to August 6, 1977, stated that "no duties and charges which have been paid or have been adjusted....shall be refunded unless the claimant makes an application for such refund under his signature and lodges it to the proper officers within three months from the date of such payment or adjustment, as the case may be". Rule 11, as in force between August 6, 1977 and November 17, 1980 contained sub-rule (4) which expressly declared: "(4) Save as otherwise provided by or under this rule, no claim of refund of any duty shall be entertained". Section 11B, as in force prior to April, 1991 contained sub-section (4) in identical words. It said : "(4) Save as otherwise provided by or under this Act, no claim for refund of any duty of excise shall be entertained". Sub-section (5) was more specific and emphatic. It said : "Notwithstanding anything contained in any other law, the provisions of this section shall also apply to a claim for refund of any amount collected as duty of excise made on the ground that the goods in respect of which such amount was collected were not excisable or were entitled ....

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.... so long as Section 11B is constitutionally valid, it has to be followed and given effect to. We can see no reason on which the constitutionality of the said provision - or a similar provision - can be doubted. It must also be remembered that Central Excises and Salt Act is a special enactment creating new and special obligations and rights, which at the same time prescribes the procedure for levy, assessment, collection, refund and all other incidental and ancillary provisions. As pointed out in the Statement of Objects and Reasons appended to the Bill which became the Act, the Act along with the Rules was intended to "form a complete central excise code". The idea was "to consolidate in a single enactment all the laws relating to central duties of excise". The Act is a self-contained enactment. It contains provisions for collecting the taxes which are due according to law but have not been collected and also for refunding the taxes which have been collected contrary to law, viz., Sections 11A and 11B and its allied provisions. Both provisions contain a uniform rule of limitation, viz., six months, with an exception in each case. Sections 11 and 11B are complimentary to each other....

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....1 and Section 11B. For this reason, a suit for refund would also not lie. Taking any other view would amount to nullifying the provisions in Rule 11/Section 11B, which, it needs no emphasis, cannot be done. It, therefore, follows that any and every claim for refund of excise duty can be made only under and in accordance with Rule 11 or Section 11B, as the case may be, in the forums provided by the Act. No suit can be filed for refund of duty invoking Section 72 of the Contract Act. So far as the jurisdiction of the High Court under Article 226 - or for that matter, the jurisdiction of this court under Article 32 - is concerned, it is obvious that the provisions of the Act cannot bar and curtail these remedies. It is, however, equally obvious that while exercising the power under Article 226/Article 32, the Court would certainly take note of the legislative intent manifested in the provisions of the Act and would exercise their jurisdiction consistent with the provisions of the enactment." (Emphasized in bold by me for clarity) There cannot be any doubt with regard to the absolute clarity the above judgement enjoins which clearly excludes the jurisdiction of a Civil Court and ....