1. By order No. V/68/18/5/80 dated 30.5.84 the Assistant Collector of Central Excise, Madras II Dn. rejected a claim for refund from the appellant in respect of the period from 26.4.79 to 20.8.79 as barred under Section 11B of the Central Excises and Salt Act, 1944, the claim having been received in his office on 4.3.80, well after the period of six months set out in Section 11B of the Act. In appeal the Collector of Central Excise (Appeals), Madras held that Rule 11 of the Central Excise Rules, 1944 should apply as the claim was received by the Assistant Collector on 4.3.80; then he went on to examine certain decisions of the Delhi High Court, Bombay High Court and the Madras High Court set out by him in his order and held that the amount collected by the Department is without the authority of law; that the time limit stipulated under Rule 11 would not apply but the time limit stipulated under the Limitation Act, 1963 would prevail. Accordingly he vacated the order of the Assistant Collector and directed the Asstt.
Collector to re-examine the refund claim on merits. Collector of Central Excise, Madras has come up in appeal against the order of the Collector (Appeals).
2. The department's plea is that this Tribunal, based on the decisions of the Supreme Court in the case of 'Madras Rubber Factory v. Union of India' 1983 ELT 1579 : 1975 Cen-cus 150 C and that of Special Bench 'C' in order No. 149/1984-C dated 19.3.84, held that the provisions of general law of limitation will not be applicable to refund claims before a statutory authority like the Asstt. Collector of Central Excise. In the case of "Collector of Central Excise, Madras v. S.V.S.Oil Mills" the Tribunal has taken a similar view indicating that Central Excises Act and Rules embody a full and complete code with its own limitations. Similar view has been taken by the Tribunal in the case of "Southern Engg. Works v. Collector of Central Excise, Madras" in Appeal No. 167/168/84-C dated 28.3.84 1984 ECR 1944(Cegat).
3. On behalf of the respondents it is pointed out that a writ of mandamus has been filed against the original order of rejection by the Asst. Collector and a notice has been issued by the High Court of Madras. When the case came up here on the last date, it was sought to find out whether any stay of the proceedings of the Tribunal has been ordered by the High Court in the writ of mandamus pending before it. It is stated that W.M.P. 4948/85 has been filed praying for injunction restraining the Collector from prosecuting the appeal before this Tribunal. No order as such has been issued by the Court. He therefore urged that the appeal may not be proceeded against.
4. I do not find any particular harm that would ensue to either party if the appeal is decided on merits. For one thing, the W.M. Petition is still before the Court and there is no order of injunction against prosecution of the appeal before the Tribunal. For another, it is not as if the order of the Tribunal would adversely affect the the respondent. The matter can be referred to the High Court on point of law, by either party to the present proceedings.
5. Accordingly I proceed to dispose of the appeal on merits. Apart from the decisions quoted by the appellant-Collector this Tribunal has itself taken the view that the provisions of Rule 11 cannot be relaxed by the Tribunal in other cases--vide decisions in 1984 ECR 350 (Cegat) U. Foam Ltd. Hyderabad v. Collector of Central Excise, Hyderabad (ED)Burn Standard Co. Ltd. Salem v.Collector of Central Excise, Madras. (ED(MAS) 1/82 dated 28.5.83). In fact in dealing with : a petition to withdraw an appeal against the order of a Bench of this Tribunal regarding Section 27 of the Customs Act, the Supreme Court in the case of Miles India v. Asstt. Collector of Central Excise 1985 ECR 289 (SC) dated 6.4.84 agreed with this view and observed: We accord them leave to withdraw the appeal but make it clear that the order of the Customs, Excise and Gold (Control) Appellate Tribunal suffers from no infirmity. If really the payment of duty was under a mistake of law, the appellant may seek recourse to such alternative remedy as it may be advised.
6. It would appear that the view of the Tribunal that the limitation under Rule 11 is binding insofar as departmental officers and the Tribunal are concerned is shared by the Supreme Court itself. And the provisions of Rule 11 Central Excise Rules/Section UB of the Central Excise Act are part materia with the provisions of the Customs Act in so far as limitation is concerned. In these circumstances the present appeal is allowed and the order of the Collector (Appeals) is set aside restoring the order of the Assistant Collector referred to supra.