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TMI Blog2000 (7) TMI 91X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 - - - Dated:- 19-7-2000 - B.N. Kirpal and D.P. Mohapatra, JJ. [Order]. - C.A. No. 1346/1991 : The only question involved in this appeal is whether the application for refund which was filed by the respondent before the Excise Authority was within the prescribed period of limitation. 2. Briefly stated, the facts are that the respondent was manufacturing Sodium Hydrosulphite falling under Tariff Item No. 14AA(1) of the First Schedule to the Central Excises and Salt Act, 1944. During the financial year, 1979-80 and particularly in respect of the period from 25th April, 1979 to 29th July, 1979 the respondent had paid duty of excise on about 323.651 metric tonnes. 3. At the end of the financial year, the respondent realised that i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Central Excise, New Delhi who by an order dated 24th July, 1985 allowed the same. He came to the conclusion that the refund claim could be filed within six months from the close of the financial year i.e., on or before 30th September, 1980. 6. The appellant then filed an appeal before the CEGAT but without success. Hence this appeal. 7. It is submitted by Shri Tandon, learned Counsel for the appellant, that in deciding whether the application for refund was within the period of limitation what has to be seen is not only the terms of the aforesaid notification dated 20th August, 1977 but Rule 11 and Rule 173J which are relevant to the present case and which read as follows : Amendment : Rule 11 was substituted by Notification No. 31- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y. (3) Where as a result of any order passed in appeal or revision under the Act, refund of any duty becomes due to any person, the proper officer may refund the amount to such person without his having to make any claim in that behalf. (4) Save as otherwise provided by or under these rules no claim for refund of any duty shall be entertained. Explanation :- For the purposes of this rule, "refund" includes rebate referred to in Rules 12 and 12A." "173J. Time limit for recovery of short levy or refund of excess levy. - The provisions of rules 10 and 11 shall apply to the assessee as if for the expression 'three months', the expression 'one year' were substituted in those rules." 8. Rule 11 provides that if any duty has been paid th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the learned Counsel that it is possible only as on 31st March, 1980 the last day of the financial year, that the respondent would get to know whether its production had exceeded 360 metric tonnes or not. If the production had not exceeded 360 metric tonnes then it was entitled to claim a refund of excise duty which had been paid in respect of 150 metric tonnes which had been cleared by it. But the rule under which application for refund is made does not provide that the period of limitation is to be computed from the end of the financial year. 11. The plain and unambiguous words of Rule 11 read with Rule 173J are that the period of limitation commence from the date of payment or date of adjustment, in case if there is a current account m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that a Single Judge of the Andhra Pradesh High Court in 1980 (6) E.L.T. 620 has taken a contrary view. It was held in that case that the period of limitation will be taken from the end of the financial year. We however, find that the learned judge did not make any reference to the terms of Rule 11 and/or Rule 173J under which an application for refund is made. One other decision which may be taken note of is that of the Bombay High Court in Weikfield Products Company (India) Pvt. Ltd. v. Union of India [1991 (51) E.L.T. 323 (Bom.)]. In that case the High Court exercised its jurisdiction under Article 226 of the Constitution and ordered the refund of the excess amount of excise duty which had been paid. The High Court did not construe Rule 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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