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TMI Blog1990 (5) TMI 164X X X X Extracts X X X X X X X X Extracts X X X X ..... 793/71 dated 10-8-1971 (received on 17-8-1971), the licensee, for the first time, claimed refund of C.E. duty of Rs. 47,701/- paid on Boards during Aug. 1970 to July 1971 contesting such classification. They also lodged claims for refund of C.E. duty paid on Boards in their letters as follows : Letter Ref. No. Date Date of receipt Period for which refund claimed Amount of refund claimed 1. SIF/A-24/885/71 dated 5-10-1971 2. SIF/A-24/886/71 dated 5-10-1971 3. SIF/A-24/887/71 dated 5-10-1971 4. SIF/A-24/893/71 dated 7-10-1971 5. SIF/A-24/894/71 dated 7-10-1971 6.SIF/A-24/895/71 dated 7-10-1971 7. SIF/A-24/896/71 dated 7-10-1971 8. SIF/A-24/974/71 dated 12-11-1971 16-10-1971 16-10-1971 16-10-1971 16-10-1971 16-10-1971 16-10-1971 16-10-1971 16-10-1971 June 64 to Dec. 64 Jan. 65 to Dec. 65 Jan. 66 to Dec. 66 Jan. 67 to Dec. 67 Jan. 68 to Dec. 68 Jan. 69 to Dec. 69 Jan. 70 to Dec. 70 Aug. 71 to Oct. 71 Rs. 12347.69 Rs. 22,253.64 Rs. 40,717.50 Rs. 60,371.84 Rs. 49315.85 Rs. 49,114.94 Rs. 31,431.63 Rs. 5,302.41 Moreover, in their letter ref. No. SIF/A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... paid prior to 17-10-1968. Against that order the appellants approached the learned Collector who dismissed the Revision Petition by the impugned order. 7. The appellants filed this appeal against the dismissal order. It was urged in the appeal grounds that the learned Collector should have held that the duty was paid under protest. It was also contended that the Indian Limitation Act had no application in this case and that the Excise Authorities could not enrich themselves by retaining the duty collected without authority of law, which violates Article 265 of the Constitution of India. It was also contended that Rule 11 of the Central Excise Rules have no application to the facts of the case. Alternatively, it was contended that the applicants having filed the claim within a period of three years from the date of knowledge the claim was in time. It was also contended that the duty was collected without authority of law and hence no bar of limitation could apply to the same. 8. The Senior Advocate, Shri Bhaskar Gupta appearing alongwith Advocates - Shri Abhijit Chatterjee and Shri B. Das, reiterated the above contentions. 9. It was contended that the provisions of Limitation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 is also admissible as the formal claim for refund was filed on 16-11-1971. Since the company started paying duty under protest w.e.f. 1-11-1971 as per their letter dated 11-11-1971 referred to above, they are also eligible to get refund of duty paid on all Boards from 1-11-1971 to 16-7-1974. In view of the above findings the claim for refund duty paid prior to 17-10-1968 can t be entertained. The order of the learned Collector reads as follows : In the instant case it is to be decided as to whether, the letter No. S.LF./CE/469/64 dated 20-5-1964 claimed to have been submitted by the said Company addressed to the Assistant Collector, Central Excise Plywood Section, Calcutta may be treated as valid one as protest letter for the purpose of computing the time-limit in the matter of granting the refund. It is significant to note that at the material time and even afterwards till date there was/is any Assistant Collector ever posted as Assistant Collector, Central Excise: Plywood Section within the jurisdiction of this Collectorate. It is, therefore, evidently clear that the aforesaid letter was addressed to an officer of the Department whose existence is not on record. Moreover, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Supreme Court held that Section 5 of the Indian Limitation Act is applicable only to Court and Labour Court is not a Court. These principles are settled by various decisions. 14. But the learned Advocate s main contention was that the collection of the tax in this case is made without the authority of law and the prescribed time of six months under the Central Excises and Salt Act is not applicable to the facts of this case. In this connection, the learned Advocate relied on a decision reported in 1978 (2) E.L.T. (J154) Supreme Court (Cauvasjee and Company Others v. State of Mysore and Another) wherein the Supreme Court held that Court cannot deny refund of tax paid under mistake of law even if the person who has collected it from his customers has no subsisting liability or intention to refund it to them. It was also held that the period of limitation prescribed for recovery of money paid under a mistake of law is three years from the date when the mistake is known, be it a hundred years after the date of payment and this is the reasonable standard by which delay in seeking the remedy under Article 226 can be measured (Relied on 1964 SCR 261). That decision is not applicabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n a decision reported in AIR 1980 (SC) 1037 in the case of Shiv Shankar Dal Mills v. State of Haryana, wherein their Lordships held at Para-1 as follows : Para 1 : Where public bodies, under colour of public laws recover people s money, later discovered to be erroneous levies, Dharma of the situation admits no equivocation. There is no law of limitation, especially for public bodies, on the virtue of returning what was wrongly recovered to whom it belongs. In that case, also the above observations were made in the context of Article 226 of the Constitution and at Para 6 of that decision their Lordships held that under Article 226 of the Constitution the Court can pass such flexible orders such as the public interest dictates and equity projects. But those principles are not applicable to this case as this Tribunal has to grant the relief within the framework of the Act. 18. The learned Advocate placed heavy reliance on the decision of the Supreme Court reported in AIR 1973 Supreme Court - Page 1300 (in the case of Patel India v. Union of India) where at Paras 14 and 15 their Lordships held as follows: Para 14: Section 40 on which the Union of India in its return, provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... les framed thereunder have no application, the decision will be guided by the general law and the date of limitation would be the starting point when the mistake or the error comes to light. But in making claims for refund before the departmental authority, an assessee is bound within four corners of the Statute and the period of limitation prescribed in the Central Excise Act and the Rules framed thereunder must be adhered to. The authorities functioning under the Act are bound by the provisions of the Act. If the proceedings are taken under the Act by the department, the provisions of limitation prescribed in the Act will prevail. It may, however, be open to the department to initiate proceedings in the Civil Court for recovery of the amount by the department in case when such a remedy is open on the ground that the money received by the assessee was not in the nature of refund. This was the view taken by the Tribunal in a previous decision in the case of Miles India Ltd. v. The Assistant Collector of Customs [1987 (30) E.L.T. 641 (SC) = 1985 ECR 289] but it was assailed before this Court. The appeal was withdrawn. This court observed that the Customs Authorities, acting under th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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