2000 (5) TMI 701 - AT - Central Excise

Summary

Issues: Interpretation of Section 11B regarding time limit for claiming refund of excess duty paid; Treatment of duty as deposit vs. duty paid; Applicability of High Court judgments on administrative capacity to return excess duty; Consideration of proviso to Section 35B for appeals involving amounts less than Rs. 50,000.

Analysis:
1. The main issue in this case is the interpretation of Section 11B concerning the time limit for claiming a refund of excess duty paid. The Collector (Appeals) treated the basic duty paid by the respondents as a deposit of duty, not excess duty erroneously paid, thus exempting it from the time limit under Section 35B. The Revenue argues that the duty paid in excess should still adhere to the six-month time limit for claiming a refund, as per the provisions of Section 11B.

2. The Revenue contends that the respondents paid excess duty and incorrectly apportioned the total duty payable between Basic Excise Duty (BED) and Additional Excise Duty (AED). The respondents claimed a refund of the excess amount paid but were denied a portion due to the time bar under Section 11B. The Collector (Appeals) considered the excess amount as additional duty due to a mistake of law, exempting it from the time limit. However, the Revenue argues that any excess duty paid, even erroneously, should still fall under the six-month time limit for refund claims.

3. The Counsel for the respondents argues that since the excess duty was paid under a mistake of law, the time limit under Section 11B should not apply. He cites a High Court judgment stating that the Government can return excess duty in their administrative capacity. However, the Tribunal finds that the duty paid in excess should not be considered a deposit but as duty paid erroneously, thus subject to the time limit for refunds under Section 11B.

4. The Tribunal notes that the High Court judgment cited by the respondents does not support the exemption from the time limit under Section 11B but merely allows the Government to return excess duty administratively. Since the Revenue did not opt for such return, they are within their rights to enforce the six-month time limit for refund claims. Additionally, the Tribunal considers the proviso to Section 35B, which typically rejects appeals involving amounts less than Rs. 50,000, but in this case, due to the legal error in the order, the Revenue appeal is allowed, and the order in appeal is set aside.