TMI Blog2022 (8) TMI 166X X X X Extracts X X X X X X X X Extracts X X X X ..... EEL PLANT [ 1991 (9) TMI 212 - CEGAT, CALCUTTA] have decided that the provisions of Limitation Act and the General Clauses Act are to be applied for interpreting certain general situations like the period of limitation prescribed under any Act and it was held that t he point raised in the appeal before us that the date of computation can never be by excluding 29-2-1988, has got no legal basis. Similarly, nothing much turns on the argument that since the Act specifically provides the relevant date which in the present case is the date of payment of duty, i.e. date of debit in the P.L.A., the Limitation Act cannot be made applicable. The fact that the relevant date has been defined in the Central Excises and Salt Act does not affect a general principle as to how to compute the period of limitation. The provisions of the Limitation Act and the General Clauses Act are to be applied for interpreting certain general situations like the period of limitation prescribed under any act. Further the judgment of the Hon ble Calcutta high Court in the case of UNION OF INDIA (COMMISSIONER OF CUSTOMS, EXPORT) VERSUS BENGAL RUBY MICA SUPPLY CO. [ 2006 (8) TMI 686 - CALCUTTA HIGH COURT] as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as an excess payment of Service Tax amounting to Rs.6,30,689/- for the month of July 2013. Subsequently a refund application was filed on 06.08.2014 in terms of Section 11B of the Central Excise Act read with Section 83 of the Finance Act. A Show Cause Notice dated 27.03.2015 was issued alleging that the Appellant had contravened the provisions of Finance Act, 1994 and Service Tax Rules, 1994. The Adjudicating authority vide the Order-in-Original dated 08.12.2015 rejected the refund claim as barred by limitation of time on the ground of delay in filing such application by one day beyond the period of one year from the relevant date. On Appeal, the Ld.Commissioner(Appeals) upheld the Order-in- Original and rejected the Appeal before him. Hence the present Appeal before the Tribunal. 3. The Ld.Advocate appearing on behalf of the Appellant submitted that the refund application ought to have been filed within a period of one year from the date of payment of duty. It is his submission that for the purpose of Section 11B of the Central Excise Act, one year from the relevant date is excluding the date of payment of duty. Hence, there is no delay in filing of the refund application. He ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellant made payment of Service Tax amounting to Rs.42,16,666/- on provisional basis. On receipt of certified invoices, the actual Service Tax liability as ascertained was Rs.35,85,977/- It is the case of the Appellant that there was an inadvertent excess payment of Service Tax amounting to Rs.6,30,689/-. The Appellant have filed copy of the invoices and also the Chartered Accountant s certificate certifying the excess payment made by the Appellant as part of the Appeal Paper book. In view of such excess payment of Service Tax, the Appellant in terms of Section 11B of the Central Excise Act, 1944 read with Section 83 of the Finance Act, 1994 filed refund application on 06.08.2014 in Form-R along with copy of ST-3 Return, TR-6 Challan, Invoice-wise statement. Copy of all these documents are part of the Appeal Paper book. The Department s contention is that the claim of refund has been filed belatedly and the delay is of 1(one) day. The Appellant s claim is that for the purpose of Section 11B of the Central Excise Act, 1944, one year from the relevant date is excluding the date of payment of duty and hence it is their submission that there is no delay in filing of the refund applicat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting the time-limit. The same are as follows :- The decisions in the early period were not quite uniform but ever since 1808 when Lester v. Garland was decided, the rule is well established that where an act is to be done within a specified time from a certain date, the day of that date is to be excluded. The powers of a company for compulsory purchase of lands which were to cease after expiration of three years from the passing of the Act , which was assented to on August 9,1899, were held not to cease until the midnight of August 9,1902. When a notice was required to be served within fourteen days from the commission of the offence, a notice served at 8 a.m. on January 25, was held to be valid even though the offence was committed at 7.15 a.m. on January 11. 4 . It has also been observed by the learned author that the General Rule of exclusion of the first day and the inclusion of the last day is subject to a contrary intention indicated in the statute. Applying the above principle we find that in Section 11B of the Central Excises and Salt Act relating to refund claims the relevant expression is that a person claiming refund may make an application for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entitled to refund of Rs.8,80,140/- on account of services for which they had not permission of the Unit Approval Committee of the Development Commissioner. This approval being an essential requirement of the Exemption Notification No.12/2013-ST needs to be fully complied with if the appellant seeks to claim refund under the notification. There is nothing on record to show that the approval which is said to have not been obtained by the lower authority which fact has been reconfirmed by the first appellate authority has actually been obtained. Therefore, the refund on this account needs to be disallowed. Further the judgment of the Hon ble Calcutta high Court in the case of UOI Vs. Bengal Ruby Mica Supply Co. MANU/WB/0670/2006 as relied upon by the Respondents was a case of incorrect assessment by the Customs Authorities and the jurisdiction of the department to make assessment was challenged wherein the High Court held that the department was in rights to do the assessment and mere mistake in arriving at the value of the goods, cannot make the entire assessment invalid and thus the consequential refund was also disallowed. 9. In view of the above discussions and by respect ..... X X X X Extracts X X X X X X X X Extracts X X X X
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