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TMI Blog2017 (9) TMI 340X X X X Extracts X X X X X X X X Extracts X X X X ..... he same has been rejected solely on the ground of limitation. 2. Learned Counsel argued that limitation is not applicable to something which is not a tax but a deposit made. For this purpose he relied on the decision of the Tribunal in the case of Kansai Nerolac Paints Ltd. 2014 (300) ELT 255 (Tri-Mumbai) and of the decision of Hon'ble High Court of Gujarat in the case of Swastik Sanitarywares Ltd. 2013 (296) ELT 321 (Guj). 3. Learned AR relied on the impugned order. 4. I have gone through the rival submissions. I find that there is no doubt that certain duty was paid in the Mumbai unit which the appellant could have claimed refund. The appellant wish to claim this duty paid against the duty paid by them in the new unit located in Daman. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filed only under and in accordance with Rule 11/Section 11B and under no other provision and in no other forum. An assessee must succeed or fail in his own proceedings and the finality of the proceedings in his own case cannot be ignored and refund ordered in his favour just because in another assessee s case, a similar point is decided in favour of the manufacturer/assessee. (See the pertinent observations of Hidayatullah, CJ. in Tilokchand Motichand extracted in Para 37). The decisions of this Court saying to the contrary must be held to have been decided wrongly and are accordingly overruled herewith." 4.1 The appellant had relied on the decision of the Hon'ble High Court of Gujarat in the case of Swastik Sanitarywares Ltd. (supra) wher ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before the expiry of six months from the relevant date and sub-section (4) provided in specific terms that save as otherwise provided by or under this Act, no claim for refund of any duty of excise shall be entertained . Section 11B, as amended by 1991 (Amendment) Act, is similarly worded. Sub-section (1) now provides that a claim for refund has to be filed before the expiry of six months from the relevant date and sub-section (3) declares in emphatic terms that notwithstanding anything to the contrary contained in any judgment, decree, order or direction of the Appellate Tribunal or any court or any other provision of this Act or the rules made thereunder or any other law for the time being in force, no refund shall be made except as prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before us, validity of Section 11B (as amended in 1991) is challenged - which challenge is dealt with hereinafter and rejected - the main submission of Sri F.S. Nariman, leading the arguments on behalf of the appellants-petitioners has been that these provisions do not preclude the filing of a suit or the filing of a writ petition claiming refund where the tax has been collected contrary to law by virtue of Article 265 of the Constitution and that the question of passing on the burden of duty is totally irrelevant in the matter of refund. Once the provisions of the Act including the aforesaid provisions, viz., Rule 11 and Section 11B, as they stood from time to time, are taken as valid and effective, they constitute law within the meaning ..... X X X X Extracts X X X X X X X X Extracts X X X X
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