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1996 Supreme(Pat) 564
PATNA HIGH COURT
M.Y.Eqbal, J.
S.K.Naseeruddin Biri Merchants Ltd., Bihar Sharif
Versus
Asstt.Collector,Central Excise,Patna
Civil Writ Jurisdiction Case No. 1573 of 1985 ;
Decided On : SEPTEMBER 3, 1996
The limitation period for filing applications for refund of duty under Section 11-B of the Central Excise and Salt Act, 1944, is mandatory and cannot be extended by the authorities.
Headnote:
CENTRAL EXCISE - REFUND OF EXCESS DUTY - LIMITATION - APPLICATION FOR REFUND FILED BEYOND SIX MONTHS - REJECTION BY AUTHORITIES - VALIDITY - CENTRAL EXCISE AND SALT ACT, 1944, SEC. 11-B.
Fact of the Case:
The petitioner, a company dealing in biris, deposited excess duty on biris due to ignorance of a notification exempting certain biris from duty. The petitioner filed applications for refund of the excess duty more than six months after the date of deposit, which were rejected by the authorities on the ground of limitation.
Finding of the Court:
The court held that the authorities were correct in rejecting the refund applications as they were filed beyond the six-month limitation period prescribed under Section 11-B of the Central Excise and Salt Act, 1944. The court noted that the petitioner did not pay the duty under protest and that the limitation period was mandatory and could not be extended by the authorities.
Issues: Whether the authorities were correct in rejecting the refund applications on the ground of limitation.
Ratio Decidendi: The court relied on the provisions of Section 11-B of the Central Excise and Salt Act, 1944, which provides that applications for refund of duty must be filed within six months from the date of deposit. The court also relied on Supreme Court precedents holding that the limitation period under Section 11-B is mandatory and cannot be extended by the authorities.
Final Decision: The court dismissed the writ petition, holding that the authorities were correct in rejecting the refund applications as they were filed beyond the six-month limitation period.
M. Y. Eqbal. J.
1. This writ petition is directed for quashing the order dated 7.12.1984 passed by the Appellate tribunal, Custom, Excise and Gold (Control), New Delhi, in Appeal No.1656/84-1657/d by which the said tribunal confirmed the order of the collector, Central Excise (Appeals), calcutta, passed in Appeal No.305/307/ b. R.80 dated 24.9.1980 refusing the prayer of the petitioner for refund of the excess amount of duty on the sole ground that the application for refund was made beyond the period of six months. The aforesaid orders are annexures 4 and 5 to the writ petition.
2. The brief facts of the case as set up by the petitioner are as follows: The petitioner, a Public Limited Company, carrying on business of dealing in and selling of biris. The warehousing is being done of the unmanufactured bins tobacco received from time to time. The warehouses are at Bihar Sharif and Jhajha where the company received unmanufactured biris and the same were being done in the warehouses are at biharsharif and Jhajha where the company received unmanufactured biris and the same were being done in the warehouses The Company was duly licensed under rule 143 of the Central excise Rules (hereinafter referred to as "the said Rules") as a warehouse for the purpose of receiving unmanufactured tobacco at Bihar Sharif and Jhajha and hand-made manufactured biris are covered under the Central Excise Tariff. The said biris are required to be assessed by the proper Central Excise Officers on presentation of applications for removal in Form ARI by the petitioner. The proper Central Excise officers are required to assess the amount to duty in the assessment memorandum provided in Form ARI. The duty so assessed by the Central Excise Officers has to be deposited in full in authorised Bank. The biris could be cleared from the factory only after the assessed amount is deposited in the bank and the clearance is supervised by the proper Central Excise officers and on G. P. I (Gate passes for duty paid clearance ). The gate-passes are required to be signed by the proper Officer showing the actual time of clearance from the factory over the dates signature of the proper Central Excise officer. The petitioner was required to submit ARI showing the quantity of goods required to be cleared on payment of duty. The petitioner was also required to intimate the amount and the duty payable to best of his knowledge and the only the assessment memorandum on ARI form has to be completed by the proper Excise Officer to ensure that only valid duty has been released on the goods required to be cleared from the factory on payment of duty. The" amount so assessed has to be deposited in the authorised Bank and on presentation of duty paid document to the proper central Excise Officer and the proper officer fixes the time for actual clearance and goods are cleared in the presence of the Central Excise Officer on the basis of the paid duty chalans.
3. Petitioners case was that, on 16.3.1979, it presented two ARIs, namely, ARI No.19/413/79 dated 16.3.1979 for assessment or clearance of 94,000/- bins. The total amount of duty shown in ARI was Rs.34,171.20. Another ARI no 20/414/79 dated 16.3.1979 was for clearance of 3,02,40,000/- bins and the amount assessed was Rs.1,08,864.00. According to the petitioner, the rate of duty for both the ARIs was at the rate of Rs.3.60 per one thousand bins. The total amount of rs.143035/- was deposited in the State bank of India, Jhajha Branch, on 16.3.1979 and the clearance of biris was effected.
4. Petitioners further case was that the assessment was made by the proper central Excise Officer at the rate of Rs.3.60 per one thousand bins as against the rate of Rs.2.80 per thousand bin as per exemption notice no.32/79 dated 1.3.1979. The clearance was to be sought in respect of these two consignments and for which the duty was paid on 16.3.1979. According to the petitioner, the actual amount of duty payable as per Notification No.32/79 da
