2008 (7) TMI 78

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....n this case the assessee has by mistake debited an amount of Rs. 1.58,098/- in excess in the PLA/Cenvat account in the month of March 2001 and thereafter asked the department for permission to take credit of the amount paid by mistake. The department however advised him to file a refund claim. The appellant however contended that the amount erroneously debited was not duty. A refund claim was filed after a year which was rejected by Asst. Commissioner on the grounds of time bar. The Tribunal expressed a view that the amount deposited cannot be considered as duty, as duty paid on the goods has to be indicated on their invoices. As the amount erroneously paid in excess does not find mention in any invoices, in that sense it should be considered as deposit and not duty and accordingly the question of time bar, does not arise. In the case of Comfit Napkins It was held that the assessee cannot suo moto take credit without applying for refund when excess duty has been paid. 4. It was urged on behalf of the ld. Advocate for the appellants that in their case the goods were supplied under claim for rebate of duty and duty was paid once at the time of clearance of consignment and secondl....

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....s - 2004 (169) E.L.T. 128 (T) 3. Indore Wire Company Ltd. - 2006 (203) E.L.T. 314 (T) 4. Anapurna Malleables Ltd. - 2006 (194) E.L.T. 458 (T) 5. Flex Industries - 2005 (180) E.L.T. 251 (T) 6. Jasch Industries - 2004 (169) E.L.T. 142 (T) 7. Veena Diecasters & Engs. - 2007 (78) RLT 114 (T) 8. Jasch Industries Ltd. - 2006 (205) E.L.T. 349 (T) 9. Bill Metal Industries - 2004 (173) E.L.T. 412 (T) 10. Visakhapatnam Steel Plant - 2002 (149) E.L.T. 708 (T) 11. Gujarat Alkalies & Chemicals - 2005 (190) E.L.T. 406 12. Sulekha Works - 1998 (102) E.L.T. 274 (T) 13. USV Ltd. - 2007 (210) E.L.T. 376 (T) 14. CESTAT's Final Order No. A/1555-56/07/CIV/SMB dt. 11-1-07 in Ashok Layland Ltd. These are the eases where the duty paid through RG 23A account was found to be incorrect and subsequently duty was paid through PLA account or cases, wherein at the time finalization of assessment, the duty was found to have been paid in excess etc. 7. In view of this it was vehemently argued that as long as the duty is not reflected in the invoices issued to the customer and is paid wrongly through clerical, arithmetic or accounting error, suo moto credit can be taken and there is no need of filing....

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....f such claim. Prior to 1991 Section 11B (5) starts with a 'non obstante clause', it took every kind of refund and every claim of refund and it expressly barred the jurisdiction of courts in respect of such claim. Sub section 3 of now Section 11B clearly states that "notwithstanding anything to the contrary contained in any judgment, decree, order of direction of the appellate Tribunal or any court or in any other provisions of this Act or the Rules made thereunder or any law for the time being in force, no refund shall be made except as provided in this sub-section. The judgment says that the Central Excise Act is self-contained enactment. It contains provisions for collecting the taxes which are duty according to law but not have been collected and also for refunding the taxes which have been collected contrary to law. Thus even refunds of amount collected contrary to law are to be governed by Section 11B even though they loose their characters as duty. It is only when levy itself is considered as unconstitutional that the refunds of amount collected under that levy is to be governed limitation Act and not under the provisions of Central Excise Act. Apex Court in para 68 made it a....

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.... the enactments are self contained enactments providing for levy, assessment, recovery and refund of duties, imposed thereunder. Section 11B of the Central Excises and Salt Act and Section 27 of the Customs Act, both before and after the 1991 (Amendment) Act are constitutionally valid and have to be followed and given effect to. Section 72 of the Contract Act has no application to such a claim of refund and cannot form a basis for maintaining a suit or a writ petition. All refund claims except those mentioned under Proposition (ii) below have to be and must be filed and adjudicated under the provisions of the Central Excises and Salt Act or the Customs Act, as the case may be. It is necessary to emphasise in this behalf that Act provides a complete mechanism for correcting any errors whether of fact or law and that not only an appeal is provided to a Tribunal which is not a departmental organ-but to this Court, which is a civil court. (ii) Where, however, a refund is claimed on the ground that the provision of the Act under which it was levied is or has been held to be unconstitutional, such a claim, being a claim outside the purview of the enactment, can be made either by way of....