TMI Blog1985 (4) TMI 299X X X X Extracts X X X X X X X X Extracts X X X X ..... estricted to the period of six months before the date of their application for refund. The appellants pleaded that since their refund was on the basis of the incentive relief under Notification No. 198/76, dated 16-7-1978 they were entitled to relief in full and in any event the amendment to Rule 11 of the Central Excise Rules restricting the period to six months came into effect on 6-8-1977 only but that as the claim related to anterior period also they were entitled to full relief. The Assistant Collector under his order dated 12-9-1978 rejected the contentions of the appellants and ordered that the relief be restricted to the period of six months prior to the date of application for refund, in terms of Rule 11 of the Central Excise Rules ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nancial year before approaching the Assistant Collector for passing orders declaring them entitled to relief under the Notification, is, therefore, not acceptable. 4. That would mean that from the date of the initial production itself the appellants were entitled to claim relief under the notification and clear their goods taking benefit under the Notification. If they had not done so, and had been paying duty at the normal rate, they would be entitled to claim refund of the excess paid, under the relevant provision entitling them to claim such refund. The said provision was, at the relevant time. Rule 11 of the Central Excise Rules. Acting under the said rule the Assistant Collector had granted refund limited to a period of six months p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 6-8-1977 by anew Rule 11 the period of limitation was six months. The Bombay High Court, in its decision cited above, had held that when duty had been paid before 6-8-1977, the period of limitation for claiming refund thereof would be one year from the date of payment of duty, though the application for refund may be only subsequent to 6-8-1977. It had held that the new Rule 11 was clearly prospective in its operation and would apply only to cases in which the right to claim refund itself had arisen after the said rule came into force. 5. We have carefully perused the judgment of this Tribunal in the Atma Steels case. It is seen that question (3) (b) posed by the Tribunal read as follows: (3) (b): Whether claims for refunds made a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... claim of the assessee that once duty is paid, a right to claim refund thereof in proper circumstances was a vested right in the assessee. It was on that basis that the High Court had held that such a vested right was not defeated by the substitution of old Rule 11 by new Rule 11, in which the period of limitation was different and shorter than the one prescribed under the old rule. 7. In these circumstances, we are satisfied that the present case is to be decided not with reference to the decision of this Tribunal relied on by Shri Lakshmi Kumaran but with reference to the decision of the Bombay High Court. 8. No doubt Shri Kohli contends that the entire claim for the refund would be saved in view of the provisions of old Rule 11. But ..... X X X X Extracts X X X X X X X X Extracts X X X X
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