TMI Blog1992 (1) TMI 113X X X X Extracts X X X X X X X X Extracts X X X X ..... n application on February 18, 1988 to the Collector of Central Excise and Customs and sought permission to destroy the bottles and re-make other goods therefrom. Permission was granted by the Collector, Central Excise on February 3,1989. 2. The petitioner submitted a claim of refund of excise duty of Rs. 3,40,058.27 ps. (Rupees three lacs forty thousand fifty-eight and paise twenty-seven only) on March 29, 1989. The Assistant Collector, Central Excise issued show cause notice dated July 3, 1989 and called upon the petitioner as to why the refund claim should not be rejected as the account of return of the goods and production of other goods was not submitted before the Collector of Central Excise within prescribed time as required under sub-rule (3) of Rule 173L of the Central Excise Rules and also on the ground that the refund claim was not preferred within the period of six months as provided under Section 11B of the Central Excises and Salt Act, 1944. The petitioner appeared before the Assistant Collector and made submissions on facts as well as on law points. The Assistant Collector, by his order dated November 30, 1989, produced at annexure-A to the petition, rejected the cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from the date of re-entry of the goods in the factory. In this case the date of re-entry was January 4, 1988 and January 9, 1988. Therefore, the limitation of six months would expire on July 8, 1988. In the instant case the claim for refund has been made on March 29, 1989. Thus, obviously the claim was preferred beyond the prescribed period of limitation. Therefore also, the Assistant Collector rejected the claim. 5. It is contended on behalf of the petitioner that in past there were cases of return of goods and the petitioner had preferred refund claim. At that time the department insisted for permission of the Collector regarding destruction of goods. Thus according to the petitioner, the department induced the petitioner company to understand that the permission of the Collector regarding destruction of goods was a pre-condition to the filing of the refund claim and to the furnishing of accounts. The contention is repelled by the respondents. In the affidavit-in-reply filed by one Shri P.R. Nikumbh, Assistant Collector of Central Excise and Customs, Division III, Vadodara, it is pointed out that in past in similar circumstances, the petitioner has been granted refund claim on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... condition precedent before filing the claim of refund, that would not change the position of law. Such erroneous belief of an officer of the department cannot be pleaded as estoppel. Moreover, as indicated hereinabove, even in that very proceeding, the adjudicating authority of the department had not considered this to be a good ground. 8. As disclosed in the affidavit in reply filed by Shri P.R. Nikumbh, Assistant Collector of Central Excise and Customs, Division III, Vadodara, the petitioner company as well as the learned advocates appearing for the petitioner were very much aware about the position of law. This fact is clear from the letters dated July 7, 1988 and February 2, 1989. In the aforesaid letters it is contended by the company that the permission to destroy the goods was not a condition precedent. In fact this contention has been upheld by the adjudicating authority of the department. Therefore, to say that the petitioner was induced to understand and believe by the department that the permission to destroy the goods was a condition precedent to file the claim of refund has no merits 9. It is contended that the filing of account with the Collector within the presc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mere procedural requirement. In the absence of the necessary accounts having been filed within the prescribed period of limitation, it would not be possible for the department to make physical verification of the goods. Therefore, it cannot be said that the view taken by the Assistant Collector is in any way contrary to law, unjust or arbitrary. 11. In the instant case, the refund claim was required to be made within the prescribed period of six months from the relevant date. The relevant date would be the date on which the goods reentered the factory. In this case it would be January 4, 1988 and January 9, 1988 as provided in sub-clause (b) of Clause B of Explanation to Section 11B of the Act. Thus the period of six months would expire on July 8, 1988 while the claim has been preferred on March 29, 1989. The Assistant Collector is bound by the provisions of the statute. This is the law laid down by the Supreme Court in the case of Collector of C.E., Chandigarh v. M/s. Doaba Co-op. Sugar Mills Ltd. reported in AIR 1988 S.C. 2052 = 1988 (37) E.L.T. 478 (SC). In that case the department sought to invoke the provisions of Section 11A of the Act and attempted to make recovery of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refining or reconditioning to the factory. This is evident from the provisions of definition of 'relevant date' which in case of returned goods, as far as Rule 173L is concerned is the date of re-entry of the goods in the factory [see sub-clause (b) of Clause (B) of Explanation to Section 11B]. Therefore the contention that the provisions of Section 11B of the Act are not applicable has no merits and the same fails. 13. The learned counsel for the petitioner has submitted that the claim of the petitioner is just. Hence it should not have been rejected on the technical ground of limitation. In support of this submission, observations made by the Supreme Court in several decisions have been referred to and relied upon. It is submitted that in a society governed by rule of law, state should not take technical plea of limitation and should not deprive a citizen of his legitimate claim. Therefore it is prayed that this court should exercise its discretion under Article 226 of the Constitution. The observations made by the Supreme Court in various decisions are required to be understood in proper context. Unless the entitlement is proved, the question of exercise of discretion does not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i Vallabh Glass Works Ltd. v. Union of India reported in 1984 (16) E.L.T. 171 wherein it is observed that there is no period prescribed by law in respect of petition filed under Article 226 of the Constitution of India. However, the Supreme Court further observed that this cannot be a rigid formula. There may be cases where a delay of shorter period may be considered sufficient to refuse relief in a petition under Article 226 of the Constitution of India, There may be also cases where there may be circumstances which may persuade the court to grant relief even though the petition may have been filed beyond the period of limitation. Each case has to be judged on its own facts and circumstances taking into consideration the conduct, the parties, the change in the situation, the prejudice which is likely to be caused to the opposite party or the general public. These observations are required to be read together with the law laid down by the Supreme Court in the case of Orissa Cement Ltd. (supra) and in the case of M/s. Doaba Co-op. Sugar Mills Ltd. (supra). Keeping in mind the law laid down by the Supreme Court in all these decisions, and having regard to the overall facts and circum ..... X X X X Extracts X X X X X X X X Extracts X X X X
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