9911796707
TMI Blog1988 (3) TMI 197X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in the office of the Superintendent on 5-8-1979 and, on transmission by him, in the office of the Assistant Collector on 18-9-1979. Under his order, dated 25-3-1980 the Assistant Collector rejected all the 3 claims as barred by limitation. On appeal therefrom the appellate Collector under his order, dated 1-2-1982 allowed the claim for refund in respect of the period subsequent to 18-3-1979 but upheld the order of the Assistant Collector in respect of the earlier periods. The revision petition preferred to the Central Government against the said order is, on transfer, now before us as this deemed appeal. 2. We have heard Shri K.K. Banerjee, advocate for the appellants and Smt. Zutshi for the department. 3. The lower authorities have ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... procedure under the notification was that the assessee claiming benefit thereunder was required to file a declaration giving all necessary figures in order to enable the Assistant Collector to fix the quantum of base clearances. It was in respect of clearances in excess of that base figure that the benefit of concessional duty was available to the assessee. That is to say, it was only on the fixation of the base clearance by the Assistant Collector that the assessee himself would be in a position to know from what date he could be held to have crossed the base clearance in order to entitle himself to the benefit of payment of duty at the concessional rate. Taking note of this situation this Tribunal held in a series of decisions that once t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts of the said case and the said case could not be taken as a precedent. When the same decision was again cited before this Tribunal in the case of Tata Finlay Ltd. (1987 Vol.29 E.L.T. 144) the Tribunal again observed that the decision of the said case arose out of facts which were peculiar. 6. In fact in taking note of the submission based on the ratio of the judgment in the case of K.B. Foams Pvt. Ltd., this Tribunal observed (Paragraph 7) as follows :- "We are convinced that adoption of the date of approval of the case clearance as the starting point for limitation would not be proper. The notification in question is of the year 1976. It will be open to any assessee claiming benefit under the said notification to furnish figures of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alone limitation is to run against him. The date of approval of the base clearance would be relevant only for this purpose that after that date every payment of duty would give rise to a cause of action for refund in terms of the approval granted and therefore refund claimed in respect of such payments after the date of approval of base clearance will have to be made within the normal period of limitation calculated from the date of payment of duty (vide the decision in Mcleod Russel (India) Ltd. v. Collector of Central Excise, Calcutta (1986 Vol. 9 E.C.R. 612). In respect of such payments the assessee cannot take advantage of the date of his declaration in terms of the principles laid down in the decisions cited earlier". 7. We may observ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sional rate. 8. It is in these circumstances that it was observed in the decision in the Tata Finlays case (supra) that to permit limitation to be computed from the date of the order on the declaration for fixing base clearance would be to allow the assessee to take advantage of his own laches and gain a benefit therefrom. 9. Limitation would commence to run from the date of payment of duty, as that is the date specified in the rule. The said relevant date cannot be postponed to any other date. But, at the same time, it would be inequitable to permit the department to take advantage of its own lapses in passing orders on the declaration filed and, by delaying the said order, defeat the right of the assessee to make the refund claim within ..... X X X X Extracts X X X X X X X X Extracts X X X X
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