TMI Blog1992 (10) TMI 206X X X X Extracts X X X X X X X X Extracts X X X X ..... find out the duty payable under the revised classification costing of Aluminium foil was necessary and relied on the ratio of some rulings; (ii) that the excess duty was paid by them under a mistake of law and in that view of the matter, time limit would be restricted to three years from the date of detection of the mistake; and (iii) that they had in a previous correspondence in connection with a different case, referred the fact of excess payment and had requested the same reference to be treated as their claim. 3. The learned Assistant Collector, after giving a personal hearing to the assessee, held that the claim for refund has been filed after 18 months from the date of payment of duty and hence, it is time-barred as per Section 11B of Central Excises and Salt Act, 1944. He has observed that the procedure followed by the assessee was fully in keeping with the law and procedure laid down and that the duty was paid as per approved classification list and, therefore, the change brought out in subsequent form could not be constituted as detection of mistake. He has also held that assessee s reference to a previous reference, cannot also be considered as a valid claim inasmuc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act, is without jurisdiction and liable to be set aside. 6. In the Appeal No. E/376/85-B1, the assessee has contended that the order passed by the Assistant Collector on 26-8-1978 regarding the classification of Pouch in form I under Item 27(2) of CET was erroneous and that there was no form statutorily prescribed in lodging the refund claim and the claim for refund by way of letter addressed to the Assistant Collector concerned who was the refunding authority, was the claim for refund. They contended that the mistake in the classification committed by the Assistant Collector concerned was made known to them through the Assistant Collector s letter dated 3-3-1980 refusing the earlier classification in form I submitted for Special Excise duty on 20-4-1978. Therefore, they contended that the period of limitation for refund of duty paid in excess under a mistake of law, shall be three years from the date the mistake was made known to the appellants under the Assistant Collector s letter dated 3-3-1980. Therefore, they say that the order passed by the Assistant Collector was not a speaking order and that the Assistant Collector arbitrarily discarded their first claim for refund m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and not at 32% and, therefore, they had by one line reply stated that this letter may therefore, be treated as our claim for refund of such excise duty . Pointing out to this reply to the show cause notice, Sh. Arora contended that this could not be considered as a refund claim under Section 11B of the Act and, therefore, the Assistant Collector was right in rejecting the claim. He prayed for setting aside the impugned order. 8. On the other hand, Ms. Mitra learned Advocate contended that show cause notice by which duty of Rs. 41,582.60P under TI 68 @ 8% was claimed, the assessee had contended that they had cleared goods on approved classification list under TI 27(c) at the rate of 32% ad valorem. In the letter, they had pointed out about the excess payment made for clearances during that period and had asked the Assistant Collector to consider their reply as refund application. Hence, this reply to show cause notice is a letter of refund. However, she admitted the factual position that the assessee filed the refund claim by their application dated 1-6-1982, giving all the particulars and documents. She also admitted the factual position that the assessee had neither made any re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 26-12-1980. The learned Collector has held that since there has been a change in the classification of the product of the appellants, it may not be fair to reject the claim on time-bar and, therefore, he remanded the case to the Assistant Collector to reconsider refund claim w.e.f. 26-2-1980. 11. In this appeal, the Revenue are contending that the assessee had submitted their claim for refund for the period 1-3-1978 to 30-10-1980 on 1-6-1982 which was after the expiry of prescribed time limit of 6 months and hence, the Collector was not justified in remanding the case to consider the refund claim from 26-2-1980 to 31-10-1980. The assessee is also aggrieved with this order and in their cross appeal, they have contended that they are entitled to the refund from 1-3-1978, the date on which they filed the classification list in respect of the product P ouch under Item 27(c). However, as the Assistant Collector had reclassified the same under TI 68, they are entitled for the refund of excess duty paid, as the duty had been paid in excess under a mistake of law and, therefore, the period of limitation will be three years from the date the mistake was made known to them under the Assis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lept over this matter and did not prefer a refund claim on the grounds urged by them as required under Section 11B of the Act. Therefore, the Assistant Collector was fully justified in rejecting their claim as time-barred. The learned Collector has also rightly rejected the reply dated 26-12-1980 to be treated as refund claim. However, he has held that the Assistant collector had reclassified their product dutiable under TI 68 on 26-2-1980 and, therefore, the duty for the period 26-2-1980 to 30-10-1980 is sustainable. The department are contending that the application having been filed on 1-6-1982 is also time-barred and claim for refund even for this period is not sustainable. This ground of the Revenue is sustainable and it has to be upheld. 12. The claim of the assessee that their reply to show cause notice dated 26-12-1980 should be considered as refund claim, is not sustainable as the period and amount do not tally and also that the assessee had not furnished relevant documents and details as required. In the case of Embarkation Headquarters Bombay v. Collector of Customs [1983 (12) E.L.T. 803], the Tribunal has held that refund is liable to be rejected if material documents ..... X X X X Extracts X X X X X X X X Extracts X X X X
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