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TMI Blog2019 (8) TMI 206X X X X Extracts X X X X X X X X Extracts X X X X ..... ribunal had negatived the claim for refund on the ground of limitation as prescribed under Section 11B of the Central Excise Act 1944. 2. The appellant is engaged in the manufacture of sugars. They have made refund claims to a total expenditure of Rs. 9,61,704/- for the period 1984-1985 to 1986-1987 before the Assistant Commissioner of Central Excise. The details of the claims are as follows:- S.No. Claim date Amount (in Rs.) Period covered 1. 2.2.88 3,00,624/- 1984-85 2. 2.2.88 1,94,448/- 1985-86 3. 13.7.87 4,66,632/- 19.2.87 to 30.5.87 Total 9,61,704/- 3. Both the Original Authority and the Appellate Authority had rejected the refund claims for the years 1984-1985 and 1985- 1986 on the gro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal funds generated to such incentives for repayment of loans advanced to them by Central Financial Institutions. It was stated that the Incentive Scheme permitted sugar factories to have a higher free sale quota. The excise duty on the higher free sale quota sugar would be applicable to levy sugar and sugar factories were permitted to retain the difference in excise duty as incentives. It was stated that this was explained in Circular No. F.3(2)/86-PO-Vol.II dated 04.11.1987. Further Notification No. 130/1983 dated 27.04.1983 was also issued wherein certificate of eligibility from the Chief Director, Directorate of Sugar, was required to avail the exemption benefit of the notification. The learned counsel contended that the excise duty col ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refund of any duty of excise may make an application for refund of such duty to the [Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise] before the expiry of [one year] [from the relevant date] [in such form and manner] as may be prescribed and the application shall be accompanied by such documentary or other evidence (including the documents referred to in section 12A as the applicant may furnish to establish that the amount of duty of excise in relation to which such refund is claimed was collected from or paid by him and the incidence of such duty had not been passed on by him to any other person: Provided that where an application for refund has been made before the commencement of the Central Excises an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e they were only enabling certificates and even according to him, the Notification No. 130/1983 relating to the incentive certificate had been issued on 27.04.1983 itself. If thereafter, the appellant had paid the excise duty collected to the Department without deducting as per the notification then they should have paid the same under protest awaiting the certificate from the by Directorate of Sugar. 11. Reliance relating to interpretation of Section 11B had been placed on the Judgment reported in 1992 (61) E.L.T. 321 (S.C.) [Union of Inida Vs. Jain Spinners Limited.,]. The relevant portion of the said Judgment in paragraph 24 is extracted below:- "24. It is difficult to appreciate the reasoning of the High Court that it was the Governm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aw for the time being in force, no refund shall be made except as provided in Sub-section (2). The High Court's order of 19.2.1986 under which alone the refund was claimed could not be an exception to the said provisions nor could the High Court have made such order after 20.9.1991 directing the payment contrary to the said provisions. The Assistant Collector in his order of 13.4.1992 has discussed exhaustively the claim made by the respondents and has pointed out, for reasons recorded therein, that the respondents had failed to prove that they had not passed on the duty in question to others. Whether the reasons given by the Assistant Collector are valid or not is not for us to comment upon in these proceedings and we express no opin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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