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TMI Blog1987 (9) TMI 162X X X X Extracts X X X X X X X X Extracts X X X X ..... Rs. 2 lakhs in each year and as such they were entitled to exemption under Notification No. 116/74-C.E., The Assistant Collector of Central Excise, Calcutta VIII Division vide his letter No. C. No./V-14(15)8-VIII/73/8357, dated 23-8-1977 intimated to the appellants as follows :- "Please refer to your letter No. Nil, dated 26-7-1977 claiming for refund of duty. 2. Your claim for refund of duty relates to the period 1-8-1974 to 31-3-1975 and 1-4-1975 to 31-3-1976 whereas you expressed your desire to prefer a claim for refund of duty as late as on 4-7-1977. I may inform you that the claim will be time-barred under Rule 11 of the Central Excise Rules, 1944." By another letter No. C.No.V/14(15)(8)/VIII/73/11493, dated 1-12-1977 the Assistant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Excise, Calcutta VIII Div. In this order, the Assistant Collector rejected the refund claim of the appellants in respect of the duty paid on paints during the period from 1-4-1974 to 31-3-1975 and 1-4-1975 to 31-3-1976 as time-barred because the refund claim was submitted on 4-7-1977. The Appellate Collector has also held that the appeal filed before him was clearly time-barred under Section 35 of the Central Excises and Salt Act, 1944. The Appellate Collector has further observed that the time-limit prescribed under Rule 11 of the Central Excise Rules, 1944 could not be relaxed by the Assistant Collector and as such his action in rejecting the refund claim as time-barred under Rule 11 was quite in order. Accordingly, their appeal was re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l apply. The Collection of duty in this case was illegal. 4. The learned JDR appearing for the respondent has argued that Rule 11 at the relevant time provided that the refund claim should be filed within 3 months from the date of payment of duty or adjustment of duty in the PLA. Since the refund application was not filed within a period of three months, the orders of the lower authority(ies) were quite according to the law and hence the appeal deserves to be dismissed. 5. We have perused the case records and have considered the arguments from both sides. As directed by the Bench the appellants have submitted photo copies of the refund application, and the Assistant Collector's letters, dated 23-8-1977, 1-12-1977 and 12-1-1978, which were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n his letter, dated 1-12-1977, the appellants were informed that they could prefer appeal to the Appellate Collector of Central Excise under Section 35 of the Central Excises and Salt Act, if they felt aggrieved by the decision already communicated to them by letter, dated 23-8-1977. From the remark on the photocopy of letter, dated 1-12-1977, it appears to us that the said letter was received by the appellants on 7-12-1977. The advice given in this letter was quite clear and the appellants could file an appeal within the time-limit of three months if they were aggrieved by the decision communicated to them. After issue of the letter, dated 1-12-1977 nothing further was required to be done by the Assistant Collector of Central Excise and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s reliance upon a statutory right and makes the claim with reference to a particular statute, then it is not open to that party to urge that the restrictions imposed by such statute on the exercise of that right as to the entertainability of the claim, are to be ignored. This decision of the Tribunal was upheld by the Hon'ble Supreme Court in their decision reported in 1987 (30) E.L.T. 641 (S.C.) - Miles India Limited v. The Assistant Collector of Customs. After the aforesaid decision of the Supreme Court, this Tribunal has been consistently taking the view that the time-limit prescribed under Section 27(1) of the Customs Act 1962 and Rule 11 of the Central Excise Rules, 1944/Section 11B of the Central Excises and Salt Act are mandatory pro ..... X X X X Extracts X X X X X X X X Extracts X X X X
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