1. When the Appeal was called on for hearing, neither the Respondent nor anyone on his behalf, was present, despite sufficient notice vide letter dated 20-12-1984. The Appeal was accordingly heard and decided ex-parte the Respondent, in terms of rule 21 of the CEGAT (PROCEDURE) RULES, 1982 [in par i materia with rule 17(2) of Order XLI, CPC].
2. The facts, in short, giving rise to. the instant Appeal, would appear to be - (a) the Respondent, manufacturing cotton yarn, deposited an amount of Rs. 7,000/- under T.R.6 Challan on 15-6-1979, although the amount that should have been deposited, was only in a sum of Rs. 6,500/-; (b) the Respondent explained the excess deposit of Rs. 500/- to be due to a mistake and applied for permission to adjust this amount towards future payment of duty. The said application was received in the office of the Assistant Collector on 6-2-1980; (c) notwithstanding the aforesaid application, the Respondent had, suo motu, entered a credit of Rs.6,500/- only in their PL A and had also cleared goods up to the said amount only; (d) in an adjudication of the claim for refund after notice to show cause as to why it should not be rejected, it was held, inter alia, that- (i) Respondent had failed to apply to the proper officer, in terms of rule 11 of the Central Excise Rules, 1944 (hereinafter, the Rules) within the period of limitation prescribed therein; (ii) Respondent's contention regarding inapplicability of rule 11 is incorrect; accordingly, the claim for refund was rejected; (i) rule 11 has no application as the excess amount in question was an advance deposit of money towards future duty liability; (ii) uestion of requesting for any credit in RT 12 did not arise, since the Respondent had shown Rs.6,500/- only in their PLA and also cleared goods up to the said amount only; (iii)the bar of limitation under rule 11 cannot apply to the facts of the case since there was neither any question of credit nor debit in the PLA and the amount virtually remained in suspense; (iv) such cases can only be governed by common law and rule 11 has no application; in the premises, he allowed the Appeal and directed the Assistant Collector either to return the amount or allow it to be adjusted against future liabilities; 3. It would appear to me, in the facts and circumstances of the case, and on submissions made and perusal of the records of that case, that- (a) indisputably, in terms of rule 11 prevailing at the relevant time, it was the Assistant Collector to whom an application for refund of duty should have been made within the time prescribed therein; (b) when the statute has prescribed a certain forum, a person seeking relief fails to go to that forum at his peril. An approach to an officer other than one designated, within the time prescribed, does not prevent the commencement or efflux of the prescribed limitation if, in actual fact, an application for refund, as mandatorily required, was preferred to the Assistant Collector after the expiry of the prescribed period of limitation; (c) the Respondent had no warrant, while the application was pending and before he was duly authorised to do so, to have shown a credit of Rs.6,500/- only in the PLA, notwithstanding that the removal of the goods was only to the limit of the said amount and not beyond, when once an amount of Rs.7,000/- was, in fact, deposited; (d) nor can it be contended on that account that the excess amount of Rs.500/- was in suspense and rule 11 had no applicability to such a case; (e) the statutory provision prescribing a period of limitation is strictly applicable to proceedings under the statute and having applied, accordingly, for refund, it is futile for the Respondent to contend that the period of limitation prescribed therein is inapplicable. If so advised, he should have filed a suit to enforce his rights, if any. There is nothing like application of common law to a refund claim under the statute. We have held, accordingly, in numerous decisions, all listed in our Order No. 536/83-C [Appeal No.CD(SB) 1233/80-C -Sandoz India Ltd. v. Collector of Customs, Bombay]. Reference may also be made usefully to our decisions in 1983 (12) ELT 558 - Indian Cable Co. Ltd, v. Collector of Customs, Calcutta and 1983 (12) ELT 839 - Nanavati & Co. Pvt. Ltd., Bombay v. Collector of Customs; and our Orders No. 172 to 185/1984-C in Appeals Nos. 5/80-C, etc.