1996 (10) TMI 192

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..... he period 1-6-1979 to 31-5-1983. The price lists filed by the appellants from time to time showed the equalised freight being collected from the buyers. The price lists were approved without any claim of deduction of the freight charges. The goods were cleared on payment of duty on the basis of approved price lists. On 23-6-1983, the appellants filed refund claim in respect of the duty paid on freight element. The Assistant Collector rejected the claim on the ground of limitation and other grounds. Collector (Appeals) set aside the order in regard to the period within six months prior to the date of the filing of the refund claim and directed the Assistant Collector to dispose of that part of the refund claim afresh. He confirmed the reject .....

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..... on for recovery of duty not levied or not paid or short levied or short paid or erroneously refunded. Section 11B enables the assessee to claim refund of any duty of excise. Both provisions contain requirement of initiating action within the particular limit of time indicated therein. It is in view of this limitation under Section 11B of the Act that the appellants have given up the claim for refund of duty paid on equalised freight prior to six months prior to the date of filing of the refund claim. Section 11B does not contain any other restriction. 4. The High Court of Calcutta in ITC Ltd. and Another v. Union of India and Others - 1988 (34) E.L.T. 473 (Cal.) considered the provisions in Sections 11A and 11B of the Act and indicated th .....

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..... erruled the contention that assessee s claim for refund was not sustainable on the ground that duty had been paid on the basis of the approval of the price lists and the approval had become final. We, therefore, hold that the lower authorities were not justified in rejecting the refund claim on the ground of the finality of the approval of the price lists and the payment of duty without protest. The view that there could not be a suo moto claim by an assessee is pointless. Where the assessee has a case that excess duty had been paid, for whatever reason, he would be entitled to take advantage of Section 11B of the Act and he is entitled to succeed if his claim is tenable. 5. The law is well-settled that freight charges, whether equalised .....

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