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TMI Blog1990 (5) TMI 44X X X X Extracts X X X X X X X X Extracts X X X X ..... n, mode of transport and other allied matters as may be specified therein. 3. Under the aforesaid Rule 12 Notification No. 171/81-C.E., dated 17-10-1981 was issued by the Central Government granting rebate of duty of excise paid on unblended tea falling under Tariff Item 3 of the First Schedule to the Central Excises and Salt Act, 1944. The tea in the aforesaid consignments of the petitioner company fall under Tariff Item No. 3 and are entitled under the said notification to the rebate of the duty of excise paid. The said notification granted rebate of Central Excise duty in respect of unblended tea provided certain conditions laid down in the proviso to the said notification were fulfilled. There is no dispute that the goods under the aforesaid 10 consignments fulfilled all the conditions laid down in the said proviso and that the petitioner is entitled to the grant of rebate. 4. Immediately after the shipment of the aforesaid consignments, within a period of one month the petitioner company claimed rebate by a letter dated 14-11-1981. The said letter was despatched under certificate of posting. Under the aforesaid notification the documents mentioned in the appendix to the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that : (a) The petitioner company was required to present its formal claim in Form 'B' along with all supporting documents within the period of limitation prescribed in Section 11B of the said Act which they failed to do. The letter dated 14-11-1981 was not received by the department and the claim was lodged only on 6-8-1982. (b) The petitioner company should have agitated its grievance before the alternative forum provided under the statute. (c) There has been delay in filing the writ petition and the same should not be entertained. There is no dispute that the petitioner company is entitled to rebate on Central Excise Duty on merits. The only dispute which has been raised is that the application should have been presented in Form B within the period of limitation mentioned in Section 11B of the said Act. The aforesaid notification provides for grant of rebate to an exporter of unblended tea on condition that certain conditions have been fulfilled. There is no dispute that the said conditions have been duly fulfilled by the petitioner company. Any amount of Central Excise duty collected in excess without the authority of law is violative of Article 265 of the Constitution ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould not stand in the way of such consideration. It has been contended on behalf of the petitioners that even if it is assumed that this is a case where Section 11B applies, in that event also it cannot be disputed that a claim for rebate was duly lodged by a letter of the petitioner company dated 14th November, 1981 which was despatched under certificate of posting. In support of the said contention a photostat copy of the letter dated 14th November, 1981 along with the proof of despatch under certificate of posting were duly produced before the Assistant Collector of Central Excise in course of the hearing. It appears from the order dated 8th March, 1984 which is also annexure to the writ petition, the only plea taken by the Assistant Collector in the said order is that on verification of records it was found that the said letter was not received by his office. Such alleged verification if at all done has been done unilaterally and behind the back of the petitioner. It has, however, been admitted in the said order that the proof of certificate of posting of the letter dated 14th November, 1981 was produced before the Assistant Collector. The order dated 8th March, 1984, however, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... examination of the said claims it is found that all the claims were lodged beyond the statutory period of six months from the date of exportation as laid down in Section 11B of the Central Excises and Salt Act, 1944 read with the said Notification No. 171/81-C.E., dated New Delhi, 17th October, 1981. 8. Under Rule 12 of the Central Excise Rules, 1944, rebate of Excise duty paid on the goods is admissible subject to the limitations and/or conditions as prescribed under the Notifications issued in terms of the said Rule. The Notification bearing No. 171/81, dated 17-10-1981 has been issued under the said Rule. 9. Para 4 of the Appendix annexed to the said notification reads as under :- "The Exporter shall present an application in form 'B' to the Collector of Central Excise before the expiry of the period specified in Section 11B of the Central Excises and Salt Act, 1944 (1 of 1944) together with the Bill. of Lading or Shipping Bill duly certified by the Customs authorities to the effect that the goods have in fact been exported viz. the date of sailing of the ship i.e. 7/8-11-1989". The said Section 11B of the Central Excises and Salt Act is also set out herein below:- (1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... received by the postal authorities but the same did not reach the claim sanctioning authority. It has also been submitted that from a copy of the said letter dated 14-11-1981 which is marked as Annexure 'B' to the writ petition it appears that the same is not a claim as required under and in terms of para 4 of the Appendix annexed to the said notification dated 17-10-1981 and that it further appears from the claim forms dated 6-8-1982 that there is no mention therein or any whisper about the petitioner company's purported previous letter dated 14-11-1981 and as such the same according to the respondent is a fabricated document which has come into existence as a result of an after-thought of the petitioner. It has been argued that the said letter dated 14-11-1981 cannot be treated as a rebate claim inasmuch as the said letter assuming though not admitting had been sent and received by the respondent authority, is not in accordance with the said notification as it was not sent along with the Bill of Lading or Shipping Bill duly certified by the Customs Authority to the effect that the goods have in fact been exported inadvertance or erroneously the petitioner could not comply with t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en submitted on behalf of the respondents that if an amount was unlawfully collected, petitioners right to refund is governed by the statute itself which provides the condition and the petitioner is bound to fulfil these conditions before claiming refund. It is not open to the petitioner to contend that he has a right of refund independent of the statute when he has already pursued the remedy of appeal as laid down in the statute. 15. It has also been argued that as the claim has been filed beyond the prescribed period of six months laid down under Section 11B of the Central Excises and Salt Act, 1944, the claim is time barred. Period of three years as laid down in the Limitation Act, 1963, is not applicable. 16. It has been submitted that the concessional rate of duty (in the instant case rebate of duty) can be availed of only by those who satisfy the conditions which have been laid down under the notification. In this connection the learned advocate for the respondent relied upon a judgment and decision in the case of Union of India Anr. v. P.M. Works reported in AIR 1974 SC 2349 = 1978 (2) E.L.T. (J 436) (SC). The Ld. Advocate for the respondents submitted that the petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ped the demand. On 6th October, 1982 the Collector of Central Excise, Chandigarh while exercising his power under Section 35A(2) of the Act as it stood at the material time issued a show cause notice against the order of the Assistant Collector. The case was adjudicated thereafter by the Collector who found that the statutory time limit under Section 11A of the Act would come into play only where the demand is on account of Central Excise duty short levied or not levied or refunded erroneously. Aggrieved by the said order the respondent preferred an appeal before the Tribunal. The Tribunal allowed the appeal. The propriety of the said decision of the Tribunal was challenged before the Supreme Court. Under such circumstances the Supreme Court held that when the duty has been levied without the authority of law or without reference to any statutory authority or the specific provision of the Act and the Rules framed thereunder, 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 the four corners o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0 of the Madras Port Trust Act. The Supreme Court found that the plea of limitation based on the said section is one which the court always looks upon with disfavour and it is unfortunate that a public authority like the Port Trust, should in all morality and justice take up such a plea to defeat a just claim of the citizen. It is high time that government and public authorities adopt the practice of not relying upon the technical pleas for the purpose of defeating legitimate claims of citizens and do what is fair and just to the citizen. Of course if a Government or a public authority takes up a technical plea, the court has to decide it and if the plea is well founded, it has to be upheld by the court but it was felt that such a plea would not ordinarily be taken by a Government or a public authority unless of course the claim is not well founded and by reason of delay in filing the same, the evidence for the purpose of resisting such a claim has become unassailable. 23. In the case of Shiv Shankar Dal Mills v. State of Haryana reported in AIR 1980 SC 1037 the Supreme Court observed as follows : "Where public bodies, under colour of public laws, recover people's money, later ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in granting a relief in the background of Article 226 of the Constitution of India and observed that any legal system, especially one evolving in a developing country, might permit Judges to play a creative role innovate to ensure justice without doing violence to the norms set down by legislation. But to invoke judicial activism to set at nought legislative judgment is subversive of the constitutional harmony and commity of instrumentalities. 27. There is no dispute that the petitioner is entitled to rebate on merit of the case. However, only on the question of limitation his claim for refund was disallowed although it is also an admitted position that the petitioner sent his claim for rebate under certificate of posting within the period of limitation as prescribed under the provisions of the statute and produced receipts issued by the postal authority. 28. In the case of Jitendra Nath Das v. Bijoylal Das reported in AIR 1976 Calcutta 477 it has been held by a learned Single Judge of this court following an earlier decision of this court in the case of Sukumar Guha v. Naresh Chandra Ghosh reported in AIR 1968 Calcutta 49 that Section 106 T.P. Act does not contemplate notice m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1958 Calcutta 251. The same principle had also been followed in another Division Bench decision of this court in the case of Chaya Devi v. Lahori Ram Prashar reported in 67 CWN 819. Accordingly in the aforesaid decision the court arrived at the conclusion "that the finding of the courts below that notice sent by post under certificate of posting has been effective under Section 106 of the T.P. Act and Section 13(6) of the West Bengal Premises Tenancy Act, 1956 is a proper and correct finding though it is based on a presumption that could be and had been properly raised and there is no scope for remand on that point to court below." 30. In the case of Gobinda Chandra v. Dwarkanath reported in 19 CWN 489 = 1915 Calcutta 313 it was observed by the Division Bench of this Court at page 319 as follows : "Proof of the fact that a letter correctly addressed has been posted and has not been received back through Dead Letter Office may justify the presumption that it had been delivered in due course of mail to the addressee, but proof of the fact that a letter has been duly posted and has been returned by the postal authorities does not justify the presumption that it has been so returne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tificate regarding posting of the letter. That only shows that the letter was received by the Postal Authorities. The Asstt. Collector in his order stated that the letter was not received in his office. Since the Assistant Collector is the Authority to grant the rebate, the most important thing is that he should receive the letter claiming the rebate in his office. Even if the postal authorities received the letter, that does not help the appellant. The decision of the Asstt. Collector is, therefore, correct. The appeal is rejected." 33. Settled law on the question of service of a letter by post has already discussed is that if it is shown that the letter has been duly posted by certificate of posting or by ordinary post there would be a presumption of regularity that the said letter has reached the addressee unless the said presumption had been duly rebutted by due evidence to the contrary. No such evidence has been adduced to show that the said letter has not reached the concerned authority except that it does not appear from records which is not a sufficient denial of such fact. It is well-known that in the office of the Government there is Receiving Section and no person has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ort Trust v. Hymanshu International (supra), the Supreme Court expressed its dissatisfaction where the Port Trust Authorities took the plea of limitation under Section 110 of the Madras Port Trust Act in a case of similar nature. In this connection the finding of the Supreme Court in the case of Sales Tax Commissioner, U.P. v. M/s. Auriaya Chamber of Commerce (supra) may also be taken note of. Indubatedly in instant case the petitioner is not guilty of any laches since he has sent the claim for rebate by letter dated 14th November, 1981 well within time and mentioned therein that the formal claim will follow. It is also not in dispute that the petitioner is entitled to refund on merit. Under such circumstances the respondent authorities should not have entangled themselves in the cobweb of procedures to defeat a just claim of the petitioner. As observed by the Supreme Court in the case of Hindustan Sugar Mills v. State of Rajasthan (supra) it is expected that the Central Government will not seek to defeat the legitimate claim of a citizen for refund of the duty paid in terms of the statute by adopting the legalistic attitude but will do what fairness and justice demand. 34. The q ..... X X X X Extracts X X X X X X X X Extracts X X X X
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