1. Appeal under Section 35B of the Central Excises and Salt Act, 1944, praying that in the circumstances stated therein, the Tribunal will be pleased to order refund of a s"no of Rs. 49,643.85 being excise duty paid "by the appellants.
2. This appeal coming up for orders upon perusing the records and upon hen ring the arguments of M/s. King and Patridge, Advocates for the appellants and upon, hearing the arguments of Shri S.K. Choudhary, Senior Departments Representative for the respondent, the Tribunal -makes the. following : 3. By his order G. No. V/68/18/299/81-GL 2 dated 9.12.81. the Assistant Collector of Central Excise, Salem Division rejected a claim for refund in respect of duty paid on crude magnesite for the period J 4.78 to 31.8.80 as barred by limitation under Section 11B of the Central Excises and Salt Act, 1944, as the claim was received in his office on 25.4,81 i.e., after six months from the date of payment of duty. The Appellate Collector of Central Excise, Madras, rejected an appeal against this order vide his C. No. V/68/96/82 dated 17.4.82.
4. Before us it is pleaded that where the payment of duty is due to a mistake of law, the limitation would be a period of three years from the date of discovery of the mistake; when the amount was paid the appellant firm was under the mistaken impression that excise duty is chargeable on crude magnesite fine. The counsel for the appellant cited certain decisions of High Courts and the Supreme Court in support of his contention. We have already held that in the case of refund covered by the Customs Act, 1962, Section 27 of that Act is a bar to a claim for refund of duty made after the expiry of six months from the relevant, date-vide Appeal No. CD(T) (MAS) 5/80 dated 28,2.83 in the case of M/n. Neyveli Lignite Corporation Limited, Neyveli v. Collector of Customs, Madras 1983 ECR 591D (Cegat Madras). The provisions of Section 1S B of the Central Excises Salt Act, 1944 or Rule 11 of Central Excise Rules, 1944 are analogous to Section 27 of the Customs Act, 1962. Further Rule 11(4) of the Central Excise Rules 1944 clearly Jays down as "Save as otherwise provided by or under these Rules, no claim for refund of any duty of excise shall be entertained". Section UB(4) is also worded similarly (whether provisions of Rule 11 or Section 11B applies to a case of refund of this type). Hence, a claim for refund has necessarily to be considered in terms of the Central Excises & Salt Act or the Rules thereunder.
5. Counsel for the appellant-firm has referred to the observations of the Supreme Court in the cast of M/s. Hindustan Sugar Mills Limited The State of Rajasthan and Ors. .' Therein His lord ship Justice PN, Bhagwati speaking for the court observed, We hopefully expect that the Central Government will not try to shirk its legal obligation by resorting to any legal technicalities for we maintain that in a democratic society governed by the rule of law, it is the duty of the State to do what is fair and just to the citizen, and the State should not seek to defeat the legitimate claim of the citizen by adopting a legalistic attitude but should do what fairness and justice demand.
The present case is not one in which a legal obligation is being avoided by the Department. Rules 10 and 11, prior to 17th November, 1980 and Section 11A and Section MB thereafter, dual with claim by the Department on an assessee, and claim by the assessee on the Department respectively, keeping in view that excise duty is essentially a tax on consumption in that its burden is almost always passed on through successive trade channels to the ultimate consumer; we are dealing with a situation where the nature of the levy has to be known fairly soon so that subsequent transactions can be entered into knowing the total liability of each party. The period of six months had been prescribed both for making a claim on the Department. 'and a claim by the Department. Considering the nature of transactions this should be fairly a long period to make a claim by the assessee on the Department or vice versa and thereafter any claim will be barred. Once the law specifically provides for a bar on claims made either on the department or by the department, it cannot be stated that in a situation like the one as in the present case where the claim is resisted on the score of time bar the department's action is not fair or just.
6. The counsel for the appellant also referred to the decision of the Supreme Court in the Madras Port Trust case viz. Hymamshu International (1979 ELT J .96) wherein the Supreme Court observed that: the Court always looks upon with disfavour and it is unfortunate that a public authority like the Port Trust should, in all morality and justice, take up such a plea to defeat, a claim of the citizen.
It is high time that governments and public authorities adopt the practice of not relying upon technical pleas for the purpose of defeating legitimate claims of citizens and do what is fair and just to the citizens.
Here again, the Court was hoping that public authority should not ordinarily take up a plea of time-bar, but went on to observe that if the public authority takes up a technical plea and the plea is well-founded, it has to be upheld by the Court.
7. The Departmental Representative referred to the decisions in the case of Bur man Construction Co, v. State of Orissa and Inchek Tyres Ltd. v. Assistant Collector of Customs and Ors. 1979 ELT J 236 : 1979 Cen-Cus 36UD (Calcutta). In these cases the Courts have clearly stated that if a right of refund is conferred by a statute and if there is any condition imposed to the exercise of that right, that would be binding on that person concerned and he cannot claim his right to refund without such condition. In the result we find that the claim has been correctly rejected as barred by limitation.