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TMI Blog1993 (11) TMI 144X X X X Extracts X X X X X X X X Extracts X X X X ..... -1993 of this Bench in appeal ED (BOM) 279/86, which arose out of Order-in-Appeal No. M-382/BD-243/86, dated 28-5-1986 of the Collector of Central Excise (Appeals), Bombay. 2. The Respondent-Assessee filed a refund claim, pleading themselves to be eligible for the same pursuant to Notification No. 43/82-C.E., dated 28-2-1982. Part of the claim was sanctioned by the Assistant Collector, rejecting the other part of the claim as barred by limitation, however, the Collector of Central Excise (Appeals), held that, in considering the refund claim available under such notification when the liability is dependent on the annual turn over, the period of limitation would start running from the end of the Financial Year and the entire claim filed was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .T. 532, instead of 1991 (51) E.L.T. 323 (Bom.). It may further be observed that the decision reported at 1991 (51) E.L.T. 532, is the one from the Tribunal, and on the same issue, where view has been taken that under the circumstances, similar to those here, the period of limitation would start running from the date of payment. 4. The department now seeks reference to the High Court of Gujarat under whose jurisdiction the Respondents have their factory, on the question as formulated thus : "Whether in lieu of the Supreme Court judgment in the case of M/s. Miles India 1987 (30) E.L.T. 478 (SC) the CEGAT being a creature of statute, the Central Excises and Salt Act, 1944, could go beyond the provisions of Section 11B of the Central Ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f "relevant date", the date at the end of the Financial Year. In his submission, therefore, the issue of law as formulated, is required to be referred to the High Court. 6. Though notice of hearing is served, none has appeared for the Respondent. It may be observed that even when the appeal was heard by this Bench, the Respondent had remained unrepresented. 7. From what has been pleaded, it is clear that some divergent views exist on the issue and various authorities have given different versions to the problem. This by itself could justify reference to the High Court, which is being done here. 8. However, before doing that, it may be observed that the law gets derived from two sources, namely statutory provisions and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ainbow Industries v. Collector, 1991 (53) E.L.T. 56 (Tribunal) and in Asian Bearings Ltd. v. Collector, 1991 (51) E.L.T. 532 (Tri.), have held the contrary view that computation has to be from the date of payment even if the benefit is to be available on the annual turn over, when only, the eligibility could be ascertained. It also appears that the Division Bench of the Kerala High Court, having once held the view that limitation commences from the end of the financial year [1978 (2) E.L.T. (J 705)] have held that the period commences from the date of payment [1983 (14) E.L.T. 2156]. 12. The divergent views thus necessitates referring the matter as prayed for. It however appears that the composite question as formulated may be bifurca ..... X X X X Extracts X X X X X X X X Extracts X X X X
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