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TMI Blog1989 (11) TMI 61X X X X Extracts X X X X X X X X Extracts X X X X ..... manufacture of worsted woollen hand knitting yarn which was entitled for exemption from duty under Notification No. 238/76-C.E. dated 30-8-1976. But the Assistant Collector who adjudicated the case rejected the said contention of the appellants on merits and also on the ground that it was barred by time observing that "Even the claim was submitted to the Inspector for the first instance by the party on 30-8-1977 whereas the claim pertains to the period from 30-7-1976 to 3-11-1976 i.e. it was submitted to the Inspector after the expiry of six months. Therefore, the claim of the party for Rs. 11, 048.66 P is hereby rejected, " Against the said order of the Assistant Collector, the appellants filed their appeal before the Collector of Central Excise, New Delhi but without success. Hence the present appeal was filed by the appellants before this Tribunal and the same came up for hearing before the Special Bench 'D'. At the time of hearing of the appeal by the Special Bench 'D', it was contended inter-alia by Shri G.K. Rana, learned counsel for the appellants that Rule 11 as substituted by M.F. (R.D.) Notification No. 267/77-CE, dated 6-8-1977 (hereinafter referred to as "new Rule 11") ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... up before this LargerBench. 5. Before the commencement of the hearing notice of hearing was also issued to the Customs, Central Excise Gold (Control) Bar Association to make the submission on the issue involved in the appeal, if it so wishes. 6. At the time of hearing Shri G. K. Rana, Advocate represented the appellants and Mrs. V. Zutshi, SDR represented the respondent. The Bar Association was represented by its Secretary Shri R.K. Jain. 7. Before we advert ourselves to the arguments advanced by the parties and Shri R.K. Jain, learned Consultant, it would be advantageous to consider the background of the provisions relating to the refund of duty under the Central Excises and Salt Act, 1944 and the rules made thereunder and also to the judgments rendered by this Tribunal. Earlier the matter relating to refund was governed by the Rules framed under the Act. Rule 11 as substituted by M.F. (R.D.) Notification No. 31-C.E., dated 29-9-1951 (hereinafter referred to as "Old Rule 11") reads as under - "No duties or charges which have been paid or have adjusted in an account-current maintained with the Collector under Rule 9, and of which repayment wholly or in part is claimed in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sions relating to refund of duty were thereafter governed by Section 11-B of the Act itself. However, it is not necessary to reproduce Section 11-B of the Act as it is not relevant for the purpose of this appeal. 12. From a plain reading of the old Rule 11 and new Rule 11, it would be clear that under the old Rule 11 read with erstwhile Rule 173-J the period prescribed for claiming the refund was one year whereas under the new Rule 11 the period for claiming the refund has been reduced to six months. 13. In the case of Nagarjuna Steels Ltd., supra following the decision of a Division Bench of the Bombay High Court in Universal Drinks (P) Ltd. v. Union of India, 1984 (18) E.L.T. 207 the Tribunal held that when the duty was paid before 6-8-1977, that is to say, when the old Rule 11 was in force, the claim for refund thereof though made subsequent to 6-8-1977 would be governed by the provisions of old Rule 11. This Tribunal again following the said Bombay High Court judgment rendered in the case of Universal Drinks, supra and the decision of the Tribunal in the case of Nagarjuna Steels Ltd., supra reiterated the same view in the case of Collector of Central Excise, Bombay v. Pen W ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... way unless it is so affected or taken away by the enactment expressly or by necessary implication. It is only a declaratory or a procedural enactment which is normally held to be retrospective. A remedial Act, on the contrary is not necessarily retrospective, it may be either enlarging or restraining and it takes effect prospectively, unless it has retrospective effect by express terms or necessary intendment. For this submission reliance was placed on the case of The Central Bank of India v. Their Workmen, AIR 1960 SC 12 (para 29) and The Workmen of M/s. Firestone Tyres and Rubber Company of India (P) Ltd. v. The Management and Others, AIR 1973 SC 1227. Elaborating on his arguments he submitted that admittedly while amending the old Rule 11 by Notification dated 6.8.1977 as aforesaid no saving provision was made for the transitional period nor any breathing time was given. Thus, when this is the situation new rule 11 should be interpreted to be prospective and not retrospective and this has had been the consistent view of the Tribunal and the contrary view expressed by the Two Member Bench in the case of M/s. Harig India Ltd. v. Collector of Central Excise, Meerut, supra is not so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion previously allowed and such law comes into force at once, it should not be allowed to have retrospective effect, which it would otherwise have, so as to destroy pre-existing vested rights of suit and to support his contention reliance was placed on a Full Bench judgment rendered by the Rajasthan High Court in the case of Jethmal v. Ambsingh, AIR 1955 Raj 97 and New India Insurance Co. Ltd. v. Shanti Mishra, AIR 1976 SC 237. 15. In reply it was contended by Mrs. V. Zutshi, learned SDR that a right to claim refund is not a vested right but it is a conditioned right and as to what is vested right she drew our attention to the Law Lexicon by T.P. Mukherjee, 1982 Edition page 840 wherein it is stated that "a right is said to be vested when the right to enjoyment, present or prospective, has become the property of some particular person or persons as a present interest independent of a contingency. It is a right which cannot be taken away without the consent of the owner. Such rights may arise from contracts or statutes and from the operation of law (See Gordhandas Beldev Das v. The Governor General in Council, AIR 1952 Punj. 103). The rights of the parties are normally to be gover ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommissioner, AIR 1927 P.C. 242). Referring to Section 6 of the General Clauses Act, she emphasised that it has become an established proposition that in the absence of a saving clause, law of limitation would normally operate with retrospective effect. This is in respect of even the enactments, which would have been otherwise entitled to avail of the provisions of Section 6 of the General Clauses Act. She continued and submitted that the position with regard to the change in 'rules', whether by substitution by repeal or abrogation, is still adverse because there is a catena of case law in support of the view that the provisions of Section 6 of the General Clauses Act are not attracted to rules even though they may be statutory rules and in support of her contention reliance was placed upon the decision rendered by a Larger Bench of this Tribunal in the case of Atma Steels Pvt. Ltd., v. Collector of Central Excise, 1984 (17) E.L.T. 331. While concluding she submitted that the case of M/s. Hang India Ltd., v. Collector of Central Excise, supra was correctly decided by the Tribunal wherein reliance was placed on the case of M/s. Rayala Corporation v. Director of Enforcement, supra and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by Notification No. 267/77-CE dated 6-8-1977 no such saving clause or any clause on the lines of clause (2) was incorporated therein therefore, the said case of M/s. Rayala Corporation v. Director of Enforcement is distinguishable on the facts of that case. In other words the controversy before us is as to whether in the absence of any saving clause or breathing time can the rule making authorities suddenly extinguish the vested right of action by providing for a shorter period of limitation, even though by and large the law of limitation may be held to be a procedural law. This question in our considered opinion was not considered in the case of M/s. Harig India Ltd., v. Collector of Central Excise, supra and M/s. Atma Steels Pvt. Ltd., v. Collector of Central Excise, supra. On this point in our considered opinion the law is very clear. In the case of Rajah of Pittapur v. Venkata Subba Row, AIR 1916 Mad 912 it was observed that a statute of limitation ceases to be a statute of more procedure which shortens the period and is sought to be used to defeat cause of action which had accrued earlier than the length of time prescribed in the law. In the case of Jethmal v. Ambsingh, AIR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 18. However, this controversy should not detain us further since in our considered opinion the said question stands concluded by the Hon'ble Supreme Court in the case of New India Insurance Co. v. Shanti Misra. AIR 1976 SC 237, wherein after quoting with approval the proposition of law laid down by a Full Bench of the Madras High Court in the case of Rajah of Pittapur v. Venkata Subba Row, supra, their Lordships observed as follows :- "(2) Even though by and large the law of limitation has been held to be a procedural law, there are exceptions to this principle. Generally the law of limitation which is in vogue on the date of the commencement of the action governs it. But there are certain exceptions to this principle. The new law of limitation providing a longer period cannot revive a dead remedy. Nor can it suddenly extinguish vested right of action by providing for a shorter period of limitation". 19. Thus, we hold that the refund claim lodged by the appellants was not time barred in view of old Rule 11, which would apply in the instant case. 20. From the record we find that the refund claim was rejected by the Assistant Collector on merits as well as being time barred un ..... X X X X Extracts X X X X X X X X Extracts X X X X
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