Jyoti Balasundaram, Member (J)

1. The short point for determination in this appeal is whether the refund claim of the appellant is barred by limitation.

2. The appellant manufactures vanaspati, the ingredients of which are vegetable non-essential oil, nickel catalyst, etc. The waste products that arise in the process of manufacture are acid oil, spent earth, nickel catalyst and hardened soap stock. Under the directions of the Range Office, the appellant debited an amount of Rs. 93,174.95 in their PLA on 25.4.1979 towards duty on acid oil under T.I. 12 for the period 1.4.1973 to 22.1.1979. Again, on 17.1.1981, an amount of Rs. 1,18,176.56 was deposited towards duty against a confirmed demand on acid oil under T.I. 68 for the period 1.3.1975 to 22.1.1978. A refund claim for refund of Rs. 93,174.95 was filed on 20.1.1981 on the ground that duty cannot be levied and collected under two different tariff items. The plea of the appellant that the duty having been paid under mistake of law, the bar of limitation of 6 months should not be made applicable, was not accepted by the Assistant Collector who rejected the claim, holding that neither was the refund claim filed within time nor was payment made under protest and also no appeal was filed against the RT-12 return for April 1979 in which the duty was shown to be adjusted. The order of the Assistant Collector having been upheld by the Collector (Appeals), the present appeal has been filed.

3. We have heard Shri M. A. Rangaswamy, learned Counsel and Shri L. N. Murthy learned DR.

4. The learned advocate submits that the amount of Rs. 93,174.95 has been recovered unlawfully and the Assistant Collector had no jurisdiction to demand duty and that, therefore, the amount paid under a void action is liable to be refunded as the Department cannot reap the benefit of a void act. He further submits that the amount should be presumed to have been paid under protest, as the Superintendent debited the amount unilaterally, without the assessee's consent His last contention is that the amount in question can at best be treated only as a deposit which is suo moto repayable by the Department. In reply, the learned DR submits that there is no evidence that the amount debited in the PLA was done under protest and the plea of protest was raised only at the stage of reply to the show cause notice. He submits that it is not a case of double payment as the 2 periods in question are different. In any event, he contends that the Tribunal is bound by the limitation provided in Section 11B of the CESA, 1944 and cannot go beyond the 6 months limitation ascertained therein.

5. We are not able to accept the contention that the payment of the amount in question was under protest - the records do not bear this out. Protest has not been satisfactorily established. Duty was paid in 1979 and a claim for refund was filed only in 1981. In a long line of decisions, the Hon'ble Supreme Court and this Tribunal have consistently taken the view that, in making a claim for refund before the departmental authority, an assessee is bound within the 4 corners of the statute and the period of limitation prescribed therein must be adhered to. In Miles India Ltd. v. Appellate Collector of Customs 1983 ELT 1026 : 1983 ECR 242D (Cegat) this Tribunal held that "unless the particular Act makes provision for any type of condonation or extension of time on cause being shown or otherwise, it is not open particularly to a Tribunal functioning within the confines of the same Act to induct provisions of general law of limitation into the statute and relax the time limit provided therein. Nor can the Tribunal impel the lower authorities to ignore the provisions of the statute and give relief to parties". This was upheld by the Hon'ble Supreme Court in 1985 ECR 289 (Miles India Ltd. v. Asstt. C.C.) wherein the Court observed that "if really the payment of duty was under a mistake of law, the appellant may seek recourse to such alternative remed