TMI Blog1992 (8) TMI 245X X X X Extracts X X X X X X X X Extracts X X X X ..... al Excises and Salt Act, 1944 (hereinafter referred to as the said Act and/or the Central Excise Tariff Act, 1985. The respondent is duly licenced for the manufacture of the aforesaid goods under the Central Excise Rules, 1944 (hereinafter referred to as the said Rules). 5. For determining the assessable value, inter alia, of'Margo Soap' the respondent from time to time filed before the Assistant Collector of Central Excise price lists in the appropriate form and in the appropriate manner prescribed therefore. The said price lists were, however, pending until the time hereinafter stated and the respondent company was allowed to clear the said goods upon provisional assessment being made thereon under Rule 9B of the Central Excise Rules pending approval of the said price lists. The price lists were approved by the Assistant Collector on or about 30th June, 1984. 6. Thereafter, during the period from September 11, 1984 up to 27/30th October, 1984, the concerned Range Superintendent purported to demand differential duties of excise from the respondent company, on the basis of the price fists approved by the Assistant Collector on 30th June, 1984 to the tune of Rs. 36,08,161.14 in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng was summarised in a written note which was filed with the Assistant Collector on or about 13th August, 1986. 11. On or about 29th August, 1986, the respondent received a copy of the purported order dated 25th August, 1986, passed by the Assistant Collector, the first appellant before us, rejecting the said refund claim of the respondent on the ground that the same was time barred under Section 11B of the said Act. 12. Being aggrieved by the said impugned order passed by the Assistant Collector, the respondent filed a writ petition in 1987 out of which present appeal arises. 13. By a judgment and order dated 14th December, 1987, the Court at the first instance allowed the writ petition and set aside impugned order passed by the Assistant Collector. The learned Judge also directed refund of the sum of Rs. 5,97,343.98 to the respondent within three months from the date of the said judgment and order. This appeal by the Excise authorities is directed against the said judgment and order. 14. At the hearing before us it has been contended on behalf of the appellants that the claim made by the writ petitioner was barred by limitation and in any event whether there was any mista ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on his production of certain goods, if after the manufacturer has made the payment on the basis of such rate for any period but before the expiry of that period such rate is reduced, the date of such reduction; (e) in a case where duty of excise is paid provisionally under this Act or the rules made there under, the date of adjustment of duty after the final assessment thereof; (f) if any other case, the date of payment of duty." 18. Thus, under sub-clause (a) of the said Explanation, the'relevant date' would mean in all cases except those provided in sub-clauses (a) to (e), the date of payment of duty. 19. It has been recorded by the Assistant Collector in the order impugned in the writ petition that the excess amount of duty was paid by the respondent between 15th January, 1986 and 14th March, 1986. Thus, the relevant date in terms of Section 11B (1) of the said Act read with Explanation (B) (f) thereto would be six months from 15th January, 1986, 31st January, 1986 and 14th March, 1986, respectively, being the dates of payment of the excess amount. The refund claim of the respondent company having been made admittedly on or about 28th May, 1986, the said refund claim wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... March, 1986. It is, therefore, apparent that in this case the 'relevant date' would be the dates of payment of the said excess amount by the respondent company. On the admitted facts of this case, we are unable to persuade ourselves to hold that the relevant date would be the date of raising the demand of duty short-paid as has been erroneously observed in the said impugned order. The said finding of the Asstt. Collector is contrary to the provisions of Section 11B of the Act. 23. There is another aspect of the matter. The question is, even assuming the claim for refund was barred by limitation, whether the appellants have any right, authority or jurisdiction to refuse the refund of the amount in question as the same has been realised without any authority of law. Collection of such excess excise duty was, therefore illegal. 24. There is no dispute, as none could be, that the said sum of Rs. 5,97,343.98 was neither due nor payable by the respondent company as and by way of Central Excise Duty under the said Act. In the premises, it was incumbent upon the Asstt. Collector to direct refund of the said sum of Rs. 5,97,343.98 to the respondent company without taking recourse to me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... L.T. 298 (Cal.), where after considering the decisions of the Supreme Court and different High Courts, it was held that when duty has been collected unlawfully, the limitation prescribed under the statute will not apply so as to defeat the claim of refund. If there be any unauthorised collection,, it is incumbent upon the Revenue authorities to refund the same. See also Salnah Tea Company Ltd. v. Superintendent of Taxes [1988 (33) E.L.T. 249 SC], Gontermann Peiper (India) Ltd. v. Additional Secretary [1986 (26) E.L.T. 471 Cal.] L.D. Textile Industries Ltd. v. Union of India[1987 (28) E.L.T. 36 Bom.]; R. Parthasarathi v. Dipsi Chemicals Pvt. Ltd. [1988 (15) Excise and Customs Cases 416 (Bom)]; Agra Beverages Corporation Pvt. Ltd. v. Union of India [1988 (34) E.L.T. 465 A11] and Kay Foam Ltd. v. Union of India. [1988 (34) E.L.T. 449 Bom]. 30. For the reasons aforesaid, this appeal fails and is dismissed. 31. It is stated that the refund has not yet been made in terms of the order under appeal. We, therefore, direct the Asstt. Commissioner to refund the sum of Rs. 5,97,343.98 within one month from the date of communication of this order with interest at the rate of 12 per cent fro ..... X X X X Extracts X X X X X X X X Extracts X X X X
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