1. The facts giving rise to these appeals are that the appellants inter alia manufacture Padding Solution formed by the reaction of Urea and Formaldehyde and use the same in their own factory for the purpose of processing man-made fabrics. During the material period they paid the duty on the said product under Central Excise Tariff Item No. 15A. In April, 1977, the Collector of Central Excise, Baroda, issued a Trade Notice No. MP/74/77 clarifying that such solutions should be treated as Precondensates falling outside the purview of Central Excise Tariff No.15A and the same shall be liable to the Central Excise duty under T.I.No. 68. The appellants preferred number of refund claims before the Assistant Collector of Central Excise, Surat who granted the refund in respect of the duty paid within the period of three years from the date of the filing of the refund claims before him. Four refund claims for the period from 25.12.1971 to 16.3.1972, 1st March 1972 to 31st December, 1972. 1st January 1973 to 31st December, 1973, 1st January 1974 to 31st December 1974, were, however, rejected as time barred having been filed beyond the period of three years.
2. Not satisfied with these orders of the Assistant Collector of Central Excise, Surat, appellants filed appeals before the Collector of Central Excise (Appeals) Bombay who by his common order No. 746 to 749/80 issued under C. No. V 2(15A) 1524/78/2558 dated 17th July, 1980 confirmed all the four orders-in-original passed by the Assistant Collector of Central Excise, Surat and dismissed the appeals.
3. Aggrieved by the said order of the Collector of Central Excise (Appeals) Bombay, the appellants filed the revision application before the Government of India Ministry of Finance, which was transferred to this Tribunal under Section 35(P) of the Central Excises and Salt Act, 1944 to be treated as an appeal. As there were four original orders which have been challenged so the appellants were required to file three more supplementary appeals, which they did. As all these four appeals involve common question of law and fact so we dispose of all these four appeals by this common order.
4. We have heard Shri D.N. Kohli, Consultant for the appellants and Shri A.S. Sunder Rajan, J.D.R. for the department and gone through the record.
5. Shri Kohli, learned consultant for the appellants argued that the duty in the present case was not paid through inadvertence, error or misconstruction. The time bar under Rule 11 of the Central Excise Rules, 1944 or even three years period under the Limitation Act could not be made applicable. The duty was recovered from the appellants under coercion and undue pressure against their protest and as such it was recovered without the authority of law and therefore, the duty so recovered must be refunded to the appellants as provided under Section 72 of the Contract Act. He cited various decisions of the Hon'ble Supreme Court and High Courts in support of his contention which are mentioned as under:Patel India Private Limited v. Union of India and Ors. Cen-Cus JulyAluminium Corporation of India Ltd. v. Union of India and Ors.
Cen-Cus October 5 Industrial Plastic Corporation Private Limited and Ors. v. Union of India and Ors. 1983 - ELT - 425.
8. Associated Bearing Co. Ltd. v. Union of India and Anr.
1982-ECR-516D.The Swadeshi Mills Co. Ltd. v. Union of India and Anr.
1982-ECR-165D. 11 Soft Beverages (Pvt.) Ltd. v. Union of India and Ors. 1982- ECR-304 D. 12. Standard Batteries Ltd. Madras v. The Appraiser Customs House, Madras and Ors. 1981-ECR-273D.Kesoram Cements, Basant Nagar v. Union of India and Ors.
1982-ECR-364D.6. As per the contention of the learned consultant of the appellants, in all these cases cited by him it has been clearly laid down that in the case of illegal levy the time bar is not applicable at all.
7. Shri A.S Sunder Rajan, learned departmental representative countered the arguments of Shri D.N. Kohli, and submitted that there is not a single decision of the Supreme Court or of any High Court laying down the proposition that a Tribunal which is a creation of the Statute would be competent to invoke the provisions of the general Law of Limitation white allowing the refund claim of the partly filed by it under the provisions of the Statute. All the cases cited by the learned consultant of the appellants pertain to the extraordinary writ jurisdiction of the Supreme Court and the High Courts.
8. In this case, admittedly, the appellants filed the refund claim applications before the statutory authority, that is, the Assistant Collector of Central Excise (Refunds), Surat. This shows that the appellants resorted to the provisions of the statute and did not opt the other remedy of having the refund outside the statute, i.e. by filing civil suits under Section 72 of the Contract Act or by invoking the writ jurisdiction of the Hon'ble High Court or Supreme Court. Had the applicants invoked the remedy of seeking the refund of duty amount, alleged to have been paid under coercion, by filing a civil suit or invoking the writ jurisdiction of the Supreme Court or High Court, the limitation period provided under the statute, that is, Rule 11 of he Central Excise Rules which was prevalent at that time would not have been applied. The fact that the appellants made the applications for refund before the Assistant Collector of Central Excise, an authority under the Central Excises & Salt Act, 1944, is sufficient to debar the appellants from alleging now that the provisions of limitation are not applicable in his case. In the case of Union of India v. A.V.Narsimhalu 1983-ELT-1534 the Hon'ble Judges of the Supreme Court while interpreting the provisions of Section 27 of the Customs Act, 1962 which are pari materia with the provisions of Rule 11 of the Central Excise Rules, 1944, which contain a bar regarding the entertainment of the claim beyond the provisions of that rule, held that where an enactment is a complete code dealing with the liability to pay duty and for obtaining relief against excessive or erroneous levy and other related matters it is not open to a party to refuse to resort to the procedure prescribed under the statute and approach the courts. Once a party places reliance upon a statutory right, then it is not open to him to urge that restrictions imposed by the said statute on the exercise of that right as to the entertainability to that claim should be ignored. As the appellants are themselves claiming the refund of duty under the provisions of the Central Excises Act and Rules, they will have to follow the restrictions imposed by the Statute. In the latest decision given by the Supreme Court in the case of Miles India Limited v. Assistant Collr. of Cus. (Civil Appeal No. 1633 of 1984 decided on 6.4.1984 (1985 ECR 289) the Hon'ble Judges held that the Cus. authorities acting under the Act were justified in disallowing the time barred claim for refund as they were bound by the period of limitation provided under Section 27(1) of the Customs Act, 1962 The provisions of Section 27 are pari materia with the provision of Rule 11 as it stood at the relevant time as much as the statutory authorities are bound by the limitation period provided under the Statute if the refund application is filed within the provisions of the statute.
9. In these appeals before us, the authorities below have granted refund of the duty even for a period of three years. We are unable to accept the contention of the learned consultant of the appellants that no period of limitation should be applied in these cases. The decision cited by the learned consultant of the appellants are either of the Supreme Court or of the High Courts passed under their extraordinary writ jurisdiction and they indicate that where the duty has been illegally recovered or paid under a mistake of law, the refund thereof is claimable under the general law of limitation within three years either by way of civil suit under Section 72 of the Indian Contract Act or by way of writ petition under Article 226 for the purpose of enforcing fundamental and statutory rights and getting direction for refund as a consequential rejief. The learned consultant of the appellants could not point any decision either of the Supreme Court or High Courts wherein it has been laid down that the statutory authorities are competent to grant refund in such cases ignoring the statutory limitation laid down under the statute In the case of Miles India Limited (Supra), the Hon'ble Supreme Court observed "if really the payment of duty was under a mistake of law, the appellants may seek recourse to such alternative remedy as it may be are bound by the period of limitation provided under the statute. There is nothing on record to show and prove that the appellants paid the duty under protest. Even otherwise in Rule 11 which was applicable at the relevant time there was no such provision that if the duty was paid under protest, no period of limitation would be applicable. Their Lordships of the Supreme Court in Madras Rubber Factory Limited v. Union of India 1983-ELT-1579 laid down that when there is nothing to show that the duty of goods was paid under protest. In these appeals before us, the learned consultant of the appellants has not been able to paint out any evidence on record to show and prove that the duty the refund of which they are claiming was paid under protest, specific or general. It was only on account of the Trade Notice No. MP/74/77 issued by the Collector of Central Excise, Baroda in April 1977, that the appellants filed the refund claims. Before that date the appellants paid the excess duty voluntarily under Tariff Item 15A without lodging any protest. In view of our discussion above and the latest decision of the Supreme Court in Miles India Limited (Supra), we find no merits in all these four appeal and we dismiss the same.