TMI Blog1990 (12) TMI 223X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... rovided 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 order of the learned Single Judge in so far it directed the second appellant to consider the application for refund without reference to Section 11-B of the Act, has got to be set aside. 8. As far as any application claiming refund to be made before the Union of India is concerned, in our opinion, such a demand stands entirely on a different footing. The right to claim refund of any tax or duty paid to or collected by the Government without authority of law fl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 by mistake of law, from Union of India, even though such claim does not fall within Section 11-B of the Act. 6. The principle governing grant of refund beyond the statutory period of limitation has been clearly enunciated above. The legal position emerging is that, (a) an application for refund made under the Act is governed by the period of limitation stipulated therein, (b) a payment under a mistake of law can be recovered by recourse to civil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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 passed on 6-9-1979. Even so, while recovering the duty from the appellants in terms of the adjudication order (duty was paid on 17-1-1981), the Department should have taken into consideration these two letters and given due credit for the amount of the duty debited on the same goods and for the same period. 12. In the above view of the matter, I feel that there is no need to look upon the claim made by the appellants on 23-1-1981 as a claim whic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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