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TMI Blog1982 (9) TMI 73X X X X Extracts X X X X X X X X Extracts X X X X ..... y confirmed by the second appellant herein by his order No. 766 of 1975 dated 12-11-1975 and consequently direct the refund of the sum of Rs. 1,31,240.77 being the amount withheld and adjusted against the subsequent refunds due to the respondent herein. The appellants herein held that the two demands made on the respondent herein are legal and valid and they are therefore amounts payable to the Government in terms of Rule 10A of the Central Excise Rules, 1944 (hereinafter referred to as the Rules), and by virtue of the powers conferred under Section 11 of the Central Excises and Salt Act, 1944 (hereinafter called the Act), deducted a sum of Rs. 1,31,240.77 from the amount payable to the respondent as refund on export of vegetable non-essent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble for the future period to the respondent so as to adjust the amount towards the demands raised. 3. On 27-4-1965 the respondent called for certain particulars from the Department and after the particulars were furnished, the respondent on 24-6-1965 sent a reply wherein it categorically asserted that the demand by the Department for a refund was incorrect and the demand was also barred by limitation. It seems that the respondent has also filed an appeal against the demand before the Appellate Collector. Nothing seems to have happened for more than five years. On 28-11-1970 a notice was issued to the respondent proposing to confirm the demand and also proposing to adjust the aforesaid amounts out of the amount due to the respondent lying ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted the objections of the respondent and came to the conclusion that the amount was payable in terms of Rule 10-A of the Rules and the Department has power under Section 11 of the Act to deduct the amount from the amount payable to the respondent as refund on export of a subsequent consignment. On appeal, the order of the Collector was confirmed and even the revisional authority, namely, the second respondent confirmed the said order. It is as against the said order, the writ petition was filed and as already stated, the writ petition was allowed by the learned single Judge of this Court. 4. The learned single Judge referred to the Bench decision of this Court in W.P. Nos. 265 and 266 of 1967 (Murugan Co. v. The Deputy Collector of Cent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ituted under the Central Boards of Revenue Act, 1963 (LIV of 1963) to levy such duty or require the payment of such sums may deduct the amount so payable from any money owing to the person from whom such sums may be recoverable or due which may be in his hands or under his disposal or control, or may recover the amount by attachment and sale of excisable goods belonging to such person : and if the amount payable is not so recovered, he may prepare a certificate signed by him specifying the amount due from the person liable to pay the same and send it to the Collector of the district in which such person resides or conducts his business and the said Collector, on receipt of such certificate, shall proceed to recover from the said person the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tate Officer in determining the amount payable cannot ignore the existing laws. If the recovery of any amount is barred by the law of limitation, it is difficult to hold that the Estate Officer could still insist that the said amount was payable. When a duty is cast on an authority to determine the arrears of rent, the determination must be in accordance with law. Section 7 only provides a special procedure for the realisation of rent in arrears and does not constitute a source or foundation of a right to claim a debt otherwise time-barred". 8. The above-said decision is a complete answer to the argument of the learned Counsel for the appellants on the first point raised by him. As there is no dispute that the claim is barred by limitatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to be realised and how refund has to be made. Even assuming that Section 60 of the Contract Act or the general principles were to apply, from what we have stated earlier, it is manifest that before the Department wanted to appropriate the amount payable to the respondent, the Department asked the respondent to show cause why the amount should not be appropriated, and two definite stands were taken by the respondent in reply. Firstly, that the claim was untenable and also barred by limitation and secondly Section 11 of the Act will not be applicable where the demand itself is barred by limitation. The respondent having taken objection to the adjustment of the amount, even of general principle, the appellants were not entitled to adjust. Af ..... X X X X Extracts X X X X X X X X Extracts X X X X
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