TaxTMI 
TaxTMI 
1996 (9) TMI 140
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.... time. The warehouses are at Biharsharif and Jhajha where the company received unmanufactured Biris and the same were being done in the warehouses. The company was duly licensed under Rule 143 of the Central Excise Rules (hereinafter referred to as "the said Rules") as a warehouse for the purpose of receiving unmanufactured tobacco at Biharsharif and Jhajha and hand-made manufactured biris are covered under the Central Excise Tariff. The said Biris are required to be assessed by the proper Central Excise Officers on presentation of applications for removal in Form AR 1 by the petitioner. The proper Central Excise Officers are required to assess the amount to duty in the assessment memorandum provided in Form AR 1. The duty so assessed by the Central Excise Officers has to be deposited in full in authorised Bank. The Biris could be cleared from the factory only after the assessment amount is deposited in the Bank and the clearance is supervised by the proper Central Excise Officers and on G.P. 1. (Gate passes for duty paid clearance). The gate passes are required to be signed by the proper officer showing the actual time of clearance from the factory over the dated signature of the ....
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....cted the aforesaid two claim applications in terms of the order dated 10-12-1980 and 8-2-1990 on the sole ground that the petitioner did not file the applications for refund of the claims within six months in terms of Rule 11 of the Central Excise Rules. Copies of the said orders are Annexures-2 and 3 to the writ petition. 6.The petitioner then preferred an appeal before the Collector (Appeals), Central Excise, Calcutta, separately against the aforesaid two orders. The Collector also rejected the appeals on 24-9-1980 and confirmed the order passed by the Assistant Collector. The petitioner then went in revision to the Government of India against the said order of the Collector and the said revision applications remained pending for some time. Thereafter when the Custom, Excise and Gold (Control) Appellate Tribunal was set up in the year 1982, these revision applications were transferred to it for disposal, which too, after hearing, rejected the same in terms of the orders dated 7-12-1984 which is Annexure-5 to the writ petition. 7.The petitioner has, therefore, come to this court challenging the validity of the aforesaid order passed by the Collector (Appeals) and Customs, Ex....
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....spute that the amount of duty was deposited by the petitioner on 16-3-1979 and the applications for refund were filed on 24-12-1979, i.e. much beyond the expiry of the period of six months. The learned Counsel for the petitioner relied on a decision of the Supreme Court in the case of M/s. Shiv Shankar Dal Mills v. State of Haryana - (A.I.R. 1980 S.C. 1037). 10.On the other hand, Mr. Ganesh Prasad Jaiswal, Additional Standing Counsel, Central Government, submitted that the respondent authorities have no power to pass any order for refund of the duty on the application for refund which was filed much beyond the expiry of six months. The learned Counsel referring to Section 11B of the Central Excises and Salt Act, 1944, submitted that the provision is mandatory and the authorities under the Act cannot extend the said period of six months in entertaining such application for refund. The learned Counsel relied on two decisions of the Supreme Court namely, M/s. Madras Rubber Factory Ltd. v. Union of India and others - (AIR 1976 S.C. 638) and Miles India Limited v. Assistant Collector of Customs - 1987 (30) E.L.T 641 (S.C.). 11.Before appreciating the rival contentions of the parti....
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....customs lower in rank than an Assistant Collector of Customs may make an application for refund of such duty to the Assistant Collector of Customs before the expiry of six months from the date of payment of duty : Provided that the limitation of six months shall not apply where any duty has been paid under protest." 14.While interpreting the said provision, it was held by the Supreme Court that the application filed under the Customs Act beyond the period of six months was rightly rejected by the authorities in view of the fact the duty was not paid by the assessee under protest. 15.In the case of Miles India Limited v. Assistant Collector, Customs (supra), the Apex Court, while interpreting Section 27 (1) of the Customs Act, observed as follows : "After the matter was heard for some time and it was indicated that the Customs Authorities, acting under the Act, were justified in disallowing the claim of refund as they were bound by the period of limitation provided therefor under Section 27 (1) of the Customs Act, 1962, learned counsel for the Appellant sought leave to withdraw the appeal. We accord their leave to withdraw the appeal but make it clear that the order of t....