9911796707
TMI Blog1987 (9) TMI 133X X X X Extracts X X X X X X X X Extracts X X X X ..... T.I. Amount of refund (1) (2) (3) (4) (5) (6) 1. FL:ASW Dt. 3-12-79 -- June 1979 to Oct. 79 IB 19,76,864-59 2. FL:ASW Dt. 3-12-79 -- June 1979 to Oct. 79 IA 4,75,900-88 3. FL:ASW Dt. 1-3-80 5-3-80 Nov. 1979 to Jan. 80 -do- IB IA 14,13,706-25 3,05,381-24 4. FL:ASW Dt. 21-4-80 24-4-80 Feb. 80 to March 1980 -do- IB IA 3,30,455-28 3,78,323-22 5. FL:ASW Dt. 30-10-80 30-10-80 April 1980 to Sept 80 -do- IA IB 1,84,782-25 7,82,984-68 6. FL:ASW Dt. 29-7-81 31-7-81 Oct. 1980 to Dec. 1980 Jan. 1981 to June 1981 IB No. TI Now 19,09,473-43 26,37,234-22 7. FL:ASW Dt. 29-7-81 31-7-81 Oct. 1980 to Dec. 1980 Jan. 1981 to June 1981 -- -- 10,14,233-13 1,22,997-53 23,35,508-49 8. FL:ASW Dt. 29-8-82 29-9-82 Oct. 1981 to Dec. 1981 Oct. 1981 to June 1982 Oct. 1981 to June 1982 IB IA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... turing expenses/ post manufacturing profits (selling costs and selling profits) and since in view of the Supreme Court judgment selling costs and selling profits form part of the assessable value, the same are not deductible from the assessable value. Consequently, duty paid on the same was correctly paid and no refund was due. (ii) Regarding refund claims mentioned in para 3 above, the Adjudicating Authority in para 7 of his order held that though the said refund claims are in respect of average freight and additional sales tax charge/surcharge on sales tax/turnover tax, octroi and transit insurance and are eligible for deductions from the assessable value being elements of post manufacturing expenses, the same were time barred being received after expiry of 6 months from the date of payment of duty as provided under Section 11B(1) of Central Excises Salt Act, 1944. It further held that the scrutiny of letter of 7-6-1979, copy of which was attached with claims (which is in dispute as is apparent from his order) shows that the duty in respect of selling cost and selling profit was paid under protest and therefore the said protest was not applicable to duty paid on averag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e General Law of Limitation and limitation starts from the date when the mistake was discovered, and therefore, the authorities below erred in invoking the period of limitation of 6 months provided under Section 11B of the Central Excises Salt Act, 1944. In support of his contention Shri Gagrat cited the following cases : (1) Shalimar Textile Mfg. Pvt. Ltd. v. Union of India, 1986 (25) E.L.T. 625 (Bom.); (2) LT.C. Ltd. v. M.K. Chipkar, 1985 (19) E.L.T. 373 (Bom.); (3) Straw Products Ltd. v. Factory Officer, Central Excise, 1983 ECR 222D (Orissa); and (4) W I.T.C. Ltd. v. Superintendent of Excise, 1983 E.L.T. 281 (Delhi). Shri Gagrat further submitted that in the instant case Central Excise duty was paid under mistake of law (which according to him, amounts to duty recovered without authority of law and jurisdiction) on the four elements (i) average freight, (ii) octroi, (iii) additional sales tax and (iv) transit insurance as held in the following cases : (1) Oriental General Industries Ltd. v. Collector of Central Excise, 1985 (21) E.L.T. 326; (2) Shalimar Textile Mfg. Pvt. Ltd. v. Union of India, 1985 (19) E.L.T. 30 (Bom.); (3) Macneill Magor Ltd., Calcutta v. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of M/s. Burmah Construction Co. v. State of Orissa, A.I.R. 1962 (S.C.) 1320, and Commissioner of Sales Tax, U.P. v. Parson Tools and Plants, Kanpur, A.I.R. 1975 (S.C.) 1039, this Tribunal ultimately held that it is not open particularly to a Tribunal functioning within the confines of the same Act to induct provision of General Law of Limitation into the statute and relax the time limit provided therein. Against this decision of the Tribunal, an appeal was filed by Miles India which was dismissed on 6-4-1984 as reported in 1985 ECR 289 (S.C.), supra, wherein their Lordships held as follows : After the matter was heard for some time and it was indicated that the Customs Authorities, acting under the Act, were justified in disallowing the claim for refund as they were bound by the period of limitation provided therefor under S. 27(1) of the Customs Act, 1962, learned Counsel for the Appellant sought leave to withdraw the appeal. We accord their leave to withdraw the appeal but make it clear that the order of the Customs, Excise Gold (Control) Appellate Tribunal suffers from no infirmity. If really the payment of the duty was under a mistake of law, the appellant may seek recou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r refund can be made under Section 27(1) of the Customs Act unless the claim is made within 6 months. Thus the law stands well settled that authorities constituted under the Central Excises, Salt Act are bound by the period of limitation provided in the Act itself, and the contention of the learned Counsel for the appellants that the Tribunal has powers to relax the time limit cannot beaccepted. In the case of Indo-Japan Industries v. Collector, 1987 (27) E.L.T. 502, this Tribunal while dealing with the same question concluded that it has no powers to relax time limit provided under Section 27 of the Customs Act. It deserves to be mentioned here that even the High Court may not choose to lift the bar of limitation and order refund of duty in suitable cases as held by a Division Bench of the Calcutta High Court in the case of Incheck Tyres Ltd. v. Collector of Central Excise, supra. 11. Before we part with this contention it deserves to be mentioned here in all fairness to the appellants that in the case of Beverages and Food Products Vs. Collector, 1986 (26) E.L.T. 1001, the East Regional Bench of this Tribunal has held that where duty is paid under mistake of law, the provisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsel for the appellants further contended that all payments of excise duty on and after 7-6-1979, for which refund claims in question were filed were effected under protest . Therefore, the time limit of 6 months prescribed under Section 11B (1) of the Central Excises and Salt Act, would not apply. In reply, Shri Doiphode, learned SDR for the respondent submitted that both the authorities below have found that the payments were not made under protest . 14. Shri Gagrat, learned Counsel for the appellants while elaborating his arguments contended that all payments of excise duty on and after 7-6-1979 were effected under protest . He submitted that - (i) for the period from 7-6-1979 to 1-6-1981 the relevant provision only provided for payment under protest . In other words, no procedure was prescribed which was to be followed in cases where duty was paid under protest . (ii) for the period from 1-6-81 to 30-7-83 (in the case of average freight) and from 1-6-81 to 9-3-84 (in the case of octroi, additional sales tax and transit insurance), the provision of Rule 233(b) of the Central Excise Rules, 1944 was in force which prescribes Procedure to be followed in cases where duty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ivered to the Superintendent, Central Excise as alleged. As stated above, the Assistant Collector has recorded a specific finding that the appellants have failed to produce any evidence that the letter, dated 7-6-1979 was delivered and no copy of this alleged letter was available on the records of his office or that of Range Office nor the appellants have produced the copy of the same or its acknowledgement. It is an admitted fact that the appellants did not produce any acknowledgement to show that the said letter was received by the Department as alleged. The appellants have also not produced any evidence to show that the said letter, dated 7-6-1979 was ever sent to the Department as alleged. The Appellate Authority below has also confirmed the same findings. Thus, in the presence of these findings of the Adjudicating Authority, who is a very senior official of the Customs Department must be held to have been made only after due enquiry. In this view of the matter, we are supported by the decision rendered by this Tribunal in the case of 3ai Hind Oil Mills v. Collector, 1987 (28) E.L.T. 507, wherein while dealing with the question as to whether the refund application was received ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d down amongst other things it is provide, that where an assessee desires to pay duty under protest he shall deliver to the Proper Officer a letter to this effect and give grounds for payment of the duty under protest. It is admitted by the appellants that they never delivered a letter to the Proper Officer expressing their desire to pay the duty under protest and the grounds for payment of duty under protest in terms of Rule 233B after it came into force on 1-6-1981. What Shri J.R. Gagrat, learned Counsel for the appellants contended is that infraction of Rule 233B would only be procedural in nature and would not take away the rights of the appellants if there had been some formal protest or other. In our considered opinion this contention has no force. Firstly because as held earlier there is no evidence on record to show that the alleged letter, dated 7-6-1979 was sent to the Superintendent, Central Excise concerned, and secondly, because admittedly the appellants have not followed the procedure laid down under Rule 233B as and from 1-6-1981 when the said Rule came into force. The appellants have not complied with Rule 233B by delivering to the Proper Officer the letter of prote ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat there must be first a valid letter of protest for claiming the benefit. But in the instant case the position is otherwise. The decision rendered by this Tribunal in the case of Sirpur Paper Mills v. Collector of Central Excise, 1984 (15) E.L.T. 461 also does not help the appellants. In that case the protest was not treated valid under the erstwhile Rule 11 of the Central Excise Rules, 1944 by the Assistant Collector on the ground that no grounds for paying the duty under protest were stated. But in the facts and circumstances of that case this Tribunal concluded that the Bench was satisfied that the protest was a valid protest. In the result, we agree with the findings recorded by both the authorities below and hold that the refund claims for the said period was also time barred. 16. It deserves to be mentioned here that a part of the refund claim shown at S.Nos.3,4 and 5 as detailed out in para 3 above was held to be received in time by the authorities below. The Assistant Collector in the impugned order rejected the same on the ground that they related to duty paid on average freight and in computing the average freight the loading and unloading charges were also included ..... 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