TMI Blog2008 (12) TMI 95X X X X Extracts X X X X X X X X Extracts X X X X ..... /C-IV - Dated:- 5-12-2008 - A.K. SRIVASTAVA, TECHNICAL MEMBER N. A. Sayyed for the Appellant. ORDER 1. This is the appeal filed by the revenue. 2. Heard the learned J.D.R. and perused the records. 3. The case was posted for hearing on 12-9-2008 but M/s. Beharay and Rathi Constructions, Pune, the respondents herein, sought adjournment vide their letter dated 11-9-2008. Accordingly, the case was adjourned on that date. The case was again posted for hearing on 7-11-2008 and 5-12-2008 but the respondents did not appear for hearing in spite of notice. Hence the case is taken up for disposal on the basis of the evidence available on record. 4. The issue involved in the case is that the respondents are the recipients of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal by the revenue. 8. The Commissioner (Appeals) has relied upon the following case laws :- "(i) Order dated 10-12-1987 issued by Hon'ble High Court of Judicature at Allahabad in Civil Misc. Writ Petition No. 257 of 1980 in the case of Agra Beverages Corpn. (P.) Ltd. v. Union of India 1988 (34) ELT 465 (All.); (ii) Order dated 28-4-1986 issued by the Hon'ble High Court at Calcutta in CO. No. 4117 (W) of 1984 in the case of Dulichand Shreelal v. Collector of Excise 1987 (32) ELT 388 (Cal.); (iii) Order dated 13-1-2004 in respect of Writ Petition No.332 of 1996 in the case of Heavy Engineering Corporation Ltd. v. Union of India 2004 (167) ELT 396 (Cal.); (iv) Order dated 18-12-1987 issued by the Sup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the date of payment of service tax, which is 6-4-2005. Thus, they should have filed the refund claim within one year from this date, i.e., by 5-4-2006. However, the date of filing of the impugned refund claim by the respondent is 4-7-2006, which is beyond one year from the relevant date, as mentioned above. Thus, the impugned refund claim filed by the respondents is hit by time bar in terms of section 11B of the Central Excise Act, 1944. 11. I further find that the reliance placed by the Commissioner (Appeals) on the case laws cited at para 8(i), 8(ii) and 8(iv) above is misplaced as these case laws relate to the period prior to 20-9-1991, when the provisions of section 11B of the Central Excise Act, 1944 were amended vide Notification ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of law is taken. If this theory is applied universally, it will lead to unimaginable chaos. Therefore, 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 no other provision and in no other forum. An assessee must succeed or fail in his own proceedings and the finality of the proceedings in his own case cannot be ignored and refund ordered in his favour just because in another assessee's case, a similar point is decided in favour of the manu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the same may be called an illegal levy, however, even for the refund of the aforesaid amount, a claim has necessarily to be preferred under and in accordance with the provisions of the respective enactments before the authorities specified thereunder and within the period of limitation prescribed therein." 14. I further note that the Hon'ble Supreme Court, vide its Order dated 22-1-1997, as in 1997 (94) ELT A59, has allowed the appeal filed by the Union of India in SLP (Civil) No. 10502 of 1988 [with SLP (C) No. 14042 of 1988] against the said Order dated 10-12-1987 issued by Hon'ble High Court of Judicature at Allahabad in Civil Misc. Writ Petition No. 257 of 1980 in the case of Agra Beverages Corpn. (P.) Ltd. v. Union of India 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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