TMI Blog1984 (11) TMI 321X X X X Extracts X X X X X X X X Extracts X X X X ..... aid by them on the clearance in excess of the base clearance for the year 1976-77 and 1977-78. The claim for refund for the period 20-9-1977 to 29-11-1977 amounting to ₹ 5,555.12 was held by the Assistant Collector to be barred by time since the claim was made on 4-5-1978. The Appellate Collector felt that the six months period should be reckoned with reference to the date of payment of duty and not with reference to the date of communication of the approval of the base clearance by the concerned Assistant Collector. 3. Mr. Daya Sagar appearing for the appellants submitted that the normal duty payable could be known only when the quantity of the base clearance was communicated. The base clearance was communicated to the appellants ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the refund application should be filed within six months under Rule 11(4). In this case, the party only wanted the base clearance to be confirmed by his letter even though the base clearance was fixed even during 1976. If any particular remedy is prescribed under the statute, the party should have availed of it and applied for refund within six months. He relied on the ruling reported in A.I.R. 1983-603-SC Titaghur Paper Mills Co. Ltd. and another v. State of Orissa and another, wherein it was held that where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of. The letter dated 4-10-1977 cannot be deemed to be an application for refund. Ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... we are not inclined to reject it as improper. Since the proforma is merely advisory and in the absence of any rule making it is mandatory to submit a refund claim in a prescribed form, we are of the opinion that the refund claim should not be rejected. In 1983 E.L.T. 1274, it was held by the Tribunal that when the assessee submitted the prescribed declaration, it had to be inferred that the assessee had staked the claim for the benefit of the notification. There is also another factor which should be adverted to. The appellants contention is that after their intimation of crossing the date, they were informed that the previous approval was accorded wrongly and a fresh declaration was sought. The documents filed show that a fresh declarati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , we are of the view that the refund claim has been preferred in time. The lower authorities have rejected the claim on the ground that no refund claim could be entertained after the expiry of six months from the date of payment of duty. As the question of refund in the present case depended on the fixation of base clearance, the ratio of the Tribunal s decision reported in 1983 E.L.T. 2426 (Neelamalai Tea/Coffee Estates and Industries Ltd., Nilgiris v. Collector of Central Excise, Madras), applies. The impugned order is set aside and the appeal is allowed. [Order per: H.R. Syiem]. - The letter dated 4-10-1977 written by M/s. K.B. Foams asks the Assistant Collector of Central Excise, Bangalore to confirm if concessional duty can be avail ..... X X X X Extracts X X X X X X X X Extracts X X X X
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