TMI Blog2017 (3) TMI 937X X X X Extracts X X X X X X X X Extracts X X X X ..... gypsum and loading of said gypsum in the mines. Other activities are with reference to the main intention of extraction of gypsum. Accordingly, the lower authorities have not examined the scope of the service with statutory entries during the relevant period - matter needs reconsideration. Time limitation - Held that: - the relevant date to calculate the time bar should be the date of initial filing of claim i.e. 20.03.2008. The appellant’s eligibility, if any, for refund should be reckoned considering the said date as the relevant date of filing the claim - the same requires re-consideration by taking original date of filing the claim relevant for deciding the time bar. The provisions of Section 11B will apply. The question of undue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ply to such cases. 3. Ld.AR reiterated the findings of the lower authorities and submitted that any claim for refund has to be in terms of provisions of Section 11 B of the Central Excise Act, 1944, made applicable to the provisions of Finance Act, 1994. No relief beyond the statutory provisions can be granted by the Tribunal. 4. We have heard both the sides and perused the appeal records. 5. On merits of the case, we find that the nature of work undertaken by the appellant has been mentioned in the show cause notice as well as in the orders passed by the lower authorities. As per the contract, the contractors were providing various services like removal of over burden, excavation of gypsum, loading of excavated gypsum into the tru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in this connection to the decision of the Tribunal in National Construction Co. 2014 (34) STR 739 (Tribunal-Delhi). 6. Regarding the applicability of the time bar to the refund claim filed by the appellant, we note that the impugned order considered the date of re-submission of the claim (10.10.2008) for calculating the time limit. Admittedly, the claim was filed by the appellant on 20.03.2008. This was mentioned in the show cause notice also. Certain documents and clarifications called for, were submitted by the appellant on 10.10.2008. We find that the relevant date to calculate the time bar should be the date of initial filing of claim i.e. 20.03.2008. The appellant s eligibility, if any, for refund should be reckoned considerin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ced in the Central Excise Act, 1944, but the judgment cannot be applied to such an extent as would enable us to totally override and brush aside a provision like Section 11B with the rule of limitation carved out therein. The distinction as pointed out by Mr. Desai from the judgment in the case of Mafatlal Industries (supra) between unconstitutional and illegal levy or in his submission both being treated as par, will not enable us to hold that in the facts and circumstances of the present case the Assistant Commissioner and the Tribunal committed any grave error of law or perversity in rejecting the refund claim. The wider question or controversy need not be gone into in the facts of the present case. Suffice it to hold that once the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2012 (26) STR 195 (Karnataka ) and held the said decision was peculiar to the facts placed before the said High Court. The Hon ble Bombay High Court recorded that even a writ petition under Article 226 of the Constitution of India cannot be decided by over riding a law or legal regime. There is no warrant or justification for holding that a stale or belated claim can be granted in a constitutional remedy by ignoring a statutory prescription. 7. In view of the above discussion, we hold that the impugned order is not sustainable as it has not examined the merits of the case in full and correct perspective. The same is set aside. On time limit, we note that the same requires re-consideration by taking original date of filing the claim ..... X X X X Extracts X X X X X X X X Extracts X X X X
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