9911796707
TMI Blog1990 (12) TMI 223X X X X Extracts X X X X X X X X Extracts X X X X ..... 8 for the period 1-3-75 to 22-1-78. A refund claim for refund of Rs. 93,174.95 was filed on 20-1-1981 on the ground that duty cannot be levied & collected under two different tariff items. The plea of the appellant that the duty having been paid under mistake of law, the bar of limitation of 6 months should not be made applicable, was not accepted by the Asstt. Collector who rejected the claim, holding that neither was the refund claim filed within time nor was payment made under protest and also no appeal was filed against the RT-12 return for April 1979 in which the duty was shown to be adjusted. The order of the Asstt. Collector having been upheld by the Collector (Appeals), the present appeal has been filed. 3. We have heard Shri M.A. Rangaswamy, learned counsel and Shri L.N. Murthy, learned DR. 4. The learned advocate submits that the amount of Rs. 93,174.95 has been recovered unlawfully and the Assistant Collector had no jurisdiction to demand duty and that, therefore, the amount paid under a void action is liable to be refunded as the Department cannot reap the benefit of a void act. He further submits that the amount should be presumed to have been paid under protest, as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vided under the Customs Act/Central Excise Act or rules made thereunder is applicable & authorities functioning under an Act are bound by its provisions. This view was followed by the Tribunal in the case of Goodlass Narolac Paints Ltd. v. CCE, Bombay [1989 (24) ECR 296]. A recent decision of the Karnataka High Court reported in 1990 (50) E.L.T. 23 (Union of India v. Binny Ltd.), discusses in great detail the position when an application is filed for refund beyond the statutory period of limitation. For a proper appreciation of the matter, it would be pertinent to reproduce the relevant paragraphs of the judgment :- "5. Sri Shylendrakumar, the learned standing counsel for the Central Government, submitted that the question of refund was covered by Section 11B of the Act and therefore there can be no direction to the appellants to consider the application of the respondent for refund without reference to Section 11B of the Act. 6. In our opinion, the contention urged by the appellants holds good in so far as the second appellant - The Assistant Collector is concerned, for, his power to order refund is derived from and circumscribed by the provisions, of Section 11B of the Act. Rel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . State of Orissa - AIR 1962 SC 1320 in which the Supreme Court was considering the question of refund under Section 14 of the Orissa General Sales Tax Act. The Supreme Court held that a claim for refund could be made before the Collector only in conformity with the provisions of Section 14 thereof and therefore a person cannot, while claiming refund under that Section, ignore the restrictions regarding the time fixed in that Section and therefore there could be no direction to the Collector to make any refund, which he is not authorised to make under Section 14 of the Act. Similar was the view taken by the Supreme Court in the case of D.R. Mills -AIR 1976 SC 2243, on which the Assistant Collector relies. The same view is reiterated by the Supreme Court in the case of Collector v. Doaba Co-op. Sugar Mills Ltd. - AIR 1988 SC 2052. 7. For the aforesaid reasons, we answer the first question arising for consideration as follows :- "The Assistant Collector of Central Excise has no authority or duty to consider a claim for refund of any amount paid by way of excise duty by mistake of law, which falls outside the purview of Section 11-B of the Act." In view of the above answer, the ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udgment reads :- "....Realisation of tax or money without the authority of law is bad under Article 265 of the Constitution. Octroi cannot be levied or collected in respect of goods which are not used or consumed or sold within the municipal limits. So these amounts become collection without the authority of law. The respondent is a statutory authority in the present case. It has no right to retain the amount, so far and so much. These are refundable within the period of limitation. There is no question of limitation. There is no dispute as to the amount. There is no scope of any possible dispute on the plea of undue enrichment of the petitioners. We are therefore of the opinion that the Division Bench was in error in the view it took. Where there is no question of undue enrichment, in respect of money collected or retained, refund to which a citizen is entitled, must be made in a situation like this" Therefore, the respondent was entitled to make an application before the Central Government seeking refund of excess of excise duty paid. 11. For the aforesaid reasons, we answer the second question as follows :- "A person can claim refund of any excess amount paid as excise duty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the same goods though under different tariff items. To me, it appears that when the adjudication proceedings were concluded by the order dated 6-9-1979, the duty collected by the debit entry, to the extent it was included in the demand confirmed by the adjudication order, should have been, without the necessity for an application in this behalf from the appellants, refunded to them suo motu by the Department. There does not seem to be, in my opinion, any necessity for an express provision in the statute in this behalf. The amount of the duty collected by the debit entry can be deemed to be only in the nature of a deposit in view of the pending adjudication proceedings involving inter alia the same goods and some part of the same period. And, to the extent the goods and the period were the same in the debit entry and the adjudication order, the money deposited by way of debit should have been refunded or adjusted. It is seen from the records that the appellants repeatedly brought to the notice of the Department the fact of payment of duty under Item 12 by way of debit entry. Of course, the letters were dated 14-8-1980 and 13-12-1980, that is, after the adjudication order was pass ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
