TMI Blog1987 (3) TMI 369X X X X Extracts X X X X X X X X Extracts X X X X ..... in respect of the merits of the case. 2. By his order No. 145/Section 35E of C. Ex. S.A., 1944/OR/83, dated 22-9-1983, the Collector of Central Excise (Appeals), Calcutta gave a finding which should be reproduced so that his reasonings and the facts of the case can be understood clearly. He said in the last paragraph of his order that: In the similar case arising from the same issue in which the appellants filed an appeal against the order of the Assistant Collector No. 15/V(26AA) 3-21 SC/82/9404, dated 6.11.82 it was found that order No. 196B of 1980, dated 29.2.1980 of the CBEC remains unchallenged. Therefore, the order of the Board that the appellants were to be given exemption under notification No. 206/63, dated 30.11.63 as amend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rejected. The refund order was issued on 12.10.1981 and only on 10.3.1983 the appeal was filed. It is true that during the period from October 1981 to October 1982 the order of the Assistant Collector granting the refund had not been reviewed by the Collector of Central Excise, BBSR; but it was done before expiry of 2 years under Section 35E(3). Moreover, in this case, in view of the suppression of material information namely substitution of the exemption notification by the appellants while submitting the refund claim, proviso (2) to Section 11A of the Central Excises and Salt Act, 1944 applies and the time limit is five years. The appeal having been filed within five years from 12.10.1981 the same cannot be rejected as time barred. Theref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (22) E.L.T. 892 and 1985 (22) E.L.T. 510. 5. It may be true that the appeal was filed to the Collector (Appeals) on 10-3-1983, but that will not save the demand from becoming time barred. To be uptime, demand for the recovery of the money refunded on 12-10-1981 should have been made by the department within 6 months of the date of refund. There is no evidence that this was done. Instead an application was filed by the Assistant Collector in accordance with Section 35E(4) to the Collector (Appeals). This application is dated 5-3-1983. The Collector (Appeals) mentions party s application dated 10.3.1983 but this is not available. Then the Collector issued a notice dated 5-5-1983 (though he makes no mention of this in his order) calling upon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es made thereunder with intent to evade payment of duty. The Collector (Appeals) misunderstood the function of the time limit of Section 11A and thought it could be used in proceedings under Section 35E for counting the time limit within which the application should be filed. Filing of the appeal or the application within five years does not safeguard the demand from the time bar if a time bar has arisen, and an order passed by the Appellate Collector under Section 35E cannot have the effect of nullifying Section 11A and its time limit. 7. The time limit of Section 11A governs the issue of the demand under that Section and that section alone. It follows that if no demand has been issued in accordance with Section 11A, nothing else can tak ..... X X X X Extracts X X X X X X X X Extracts X X X X
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