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TMI Blog1987 (10) TMI 214X X X X Extracts X X X X X X X X Extracts X X X X ..... 11-8-1982. 5. The appellant filed a revision application against this order before the Collector. The Collector by an order-in-revision dated 29-9-1982 upheld the contention of the appellant and allowed exemption as claimed by them. 6. In pursuance of the order-in-revision dated 29-9-1982 the appellant lodged a claim for refund on 21-10-1982 of an amount of Rs. 1,39,197.03 pertaining to the period from 5-3-1982 to 13-10-1982. 7. The Asstt. Collector acting in pursuance of the order-in-revision dated 29-9-1982 examined the relevant documents and sanctioned an amount of Rs. 1,12,170.26 by an order dated 13-5-1983. 8. The sanctioned amount was paid by a cheque on 18-5-1983. 9. After lapse of more than one year the successor Asstt. Collector issued a show cause notice dated 16-8-1984 demanding an amount of Rs. 36,348.68 on the ground that this much amount had been erroneously paid. 10. The Asstt. Collector invoked the extended period of 5 years under section 11 A on the ground that the payments could not be treated as having been made under protest, as the procedure prescribed under Rule 233B had not been followed and the appellant s statement to the effect that payment ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (d) Refund was otherwise admissible. (e) The demand for recovery itself is time-barred and not legally enforceable. (f) Tribunal s decision reported in 1986 (25) E.L.T. 51 and Patna High Court decision reported in 1983 E.L.T. (1) may be referred to and relied upon. (g) Time-barred claim, otherwise due, if admitted and paid, does not confer corresponding right of recovery on the department. Limitation takes away remedial right but does not fetter and/or in any way curtail the substantive right. If substantive right is honoured without coercion, the department cannot fall back again to take the plea of time bar which was waived. Tribunal s decision reported in 1984 (18) E.L.T. 499 may be relied upon. (h) The extended period of 5 years is not applicable. 15. The learned S.D.R., Shri Thaku stated that this is a case in which a classification list was submitted by the assessee and an adjudication order regarding classification and rate of duty was issued by the Asstt. Collector. The appellant filed a revision application before the Collector and the Collector accepted appellant s view and passed an order regarding correct classification and rate of duty. The assessee, therea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the Gate passes and the R.T.1 2 with the words, Under protest . That apart, the order of the Asstt. Collector was set aside by the Collector s order-in-revision which had accepted their plea regarding classification and rate of duty and, therefore, the Asstt. Collector was, thereafter, required merely to implement the Collector s order and was in duty bound to grant the consequential relief in form of refund. The Asstt. Collector was, therefore, justified in sanctioning the refund and paying the sum. 23. Since the refund amount had been paid in pursuance of the order-in-revision, therefore, it cannot be considered as an erroneous payment. 24. In other words, their plea was that time bar was not applicable in view of their protest. But even if it was assumed that it was time-barred, even then the right was not extinguished and barred by time as once the Asstt. Collector had paid the amount, it could not be recovered on the plea of erroneous payment. The payment was not actually erroneous, inasmuch as it was even otherwise due in terms of the Collector s order. 25. It was also his contention that the judgment of the Hon ble Supreme Court cited by the learned S.D.R. in the ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .R. has rightly referred to the case of Geep Flash Light Industries Ltd. v. Union of India reported in 1983 E.L.T. 396 S.C., inasmuch as the expression erroneously refunded clearly means refunded by an order which is erroneously made. 33. The learned counsel is not correct in referring to the judgment of the High Court of Madras in the case of Madras Rubber Factory Ltd. v. Asstt. Collector of Central Excise, Madras reported in 1981 E.L.T. 565 (Mad.) as this judgment was passed with reference to the then Rule 10 where as the present case is with reference to Section 11 A. There is no difference between the two provisions. While Rule 10 was much more specific and restricted in view of the words, error, inadvertance and misconstruction used in the said rule, Section 11 A is not so hemmed in and has much wider scope. The learned counsel is, however, right in pleading that limitation only bars the remedy but does not extinguish the right in view of the judgment of Kerala High Court in the case of Official Liquidator, Palai Central Bank Ltd.v. K. Joseph Augustii Kayalackakam House, Palai (AIR 1966 Kerala 121) relied on Tribunal order in case of India Cements Ltd. v. Collector of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng that no protest was lodged or there was a suppression or mis-statement on this count. Indeed, it is at least a case of difference of opinion between the appellant and the department as to what constitutes a proper protest and not a case of mis-statement. In view of this position I find that only the normal period of six months from the date of payment was available to the department even if the payment had been erroneously made. 37. I may mention that the department has not been able to prove beyond doubt in the instant case that the Asstt. Collector had, in fact, made an error in making the payment, because it was open to the Asstt. Collector to take due cognizance of the letter of protest and apply the well known principle that substantive benefit should not be disallowed on the plea of a minor technical infirmity, if it was otherwise due on merits and it is not denied in this case that the amount was otherwise due. 38. In any eventuality, the impugned demand was time-barred, having been issued more than six months after the date of payment. 39. Thus, whichever way we may look at the matter, the department has no case and the appellant s prayer is justified. In view of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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