TMI Blog2017 (9) TMI 340X X X X Extracts X X X X X X X X Extracts X X X X ..... f any, applicable - appeal allowed - decided in favor of appellant. - Appeal No. E/86920/14 - A/88935/17/SMB - Dated:- 9-8-2017 - Mr. Raju, Member (Technical) Kirti Bhoite, Advocate for appellant Shri. H.M. Dixit, Asst. Comm. (AR) for respondent ORDER Per: Raju 1. The appellant, M/s.Vinraj Plastic Industries have filed an appeal against the rejection of refund claim by lower authorities. The appellants were located in Mumbai and then shifted their unit to Daman. However, for clearance of their Daman unit they continued to use their code of Mumbai. This lead to payment of duty in their code of Mumbai. The appellant filed refund claim and the same has been rejected solely on the ground of limitation. 2. Learned Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uestion of law in favour of the assessee is giving rise to a wave of refund claims all over the country in respect of matters which have become final and are closed long number of years ago. We are not shown that such a thing is happening anywhere else in the world. Article 265 surely could not have been meant to provide for this. We are, therefore, of the clear and considered opinion that the theory of mistake of law and the consequent period of limitation of three years from the date of discovery of such mistake of law cannot be invoked by an assessee taking advantage of the decision in another assessee s case. All claims for refund ought to be, and ought to have been, filed only under and in accordance with Rule 11/Section 11B and under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r adjustment, as the case may be . Similarly, Rule 11, as it obtained between August 6, 1977 and November 16, 1980, provided that claims for refund shall be made before the expiry of six months from the date of payment of duty . (Of course, this period of limitation did not apply where the duty was paid under protest.) Sub-rule (4) of Rule 11 provided in express terms that save as otherwise provided by or under these rules, no claim for refund of any duty shall be entertained . The situation obtaining under Section 11B, as it stood during the period November 16, 1980 to September 19, 1991, was no different. Sub-section (1) provided that a claim for refund shall have to be filed before the expiry of six months from the relevant date and sub- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ciated in Kamala Mills Ltd. v. State of Bombay [1966 (1) S.C.R. 64] dealt with in Paras 30 to 33.] The point to be stressed is that the exclusive nature of the refund provisions expressly declared in Rule 11 and Section 11B, at all points of time, is an express and specific one contained in a special statute. It is not the usual finality clause found in several statutes; it is much more. 15. The validity of the aforesaid provisions (providing a period of limitation for making claims of refund and declaring that no refund claim shall be entertained except under and in accordance with the said provisions) has never been challenged seriously. Though in certain writ petitions now before us, validity of Section 11B (as amended in 1991) is ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
