1. M/s. Vizag Bottling Co. (P) Ltd had filed the above captioned four appeals being aggrieved from the order passed by the Appellate Collector of Central Excise, Madras The Collector (Appeals) had disposed of the four appeals by a common order as the issue involved was similar. The same order is the subject-matter of appeal before the Tribunal. As the issue involved is similar, the above captioned four appeals are disposed of by this common order.
2. Shri G. Prabhakar Shastri, learned advocate the appeared on behalf of the appellant. He has filed appeal No. ED/SB/A/756/83-A which is not listed for hearing today. It also emerges from the same order and as such, it may also be heard today. Shri G.V. Naik, the learned Joint CDR has got no objection to the same. Accordingly we proceed to decide the above captioned four appeals.
3. Shri G. Prabhakar Shastri, the learned advocate, has reiterated the facts and pleaded that the issue in dispute is refund claim of the appellant for the period from 1st October, 1975 to 31st May, 1979 is time barred under Section 11-B of the Central Excise and Salt Act, 1944 against the following adjudication orders: (iv) C. No. V/I-D/18/97/198I -T.I. Adj. Order No 5/82 dt 30.1.1982 passed by the Assistant Collector of Central Excise, Division II, Visakhapatnam rejecting the refund claims of the appellants for the period 1.10.1975 to 31.5.1979 as time barred under Section 11-B of Central Excises and Salt Act, 1944.
Shri Prabhakar Shastri, the learned advocate pleaded that the duty was paid by the appellant by mistake of law and argued that the duty which is not due to the Government cannot be retained by the Government. He has argued that the general law of limitation will apply and limitation will run from the date of the knowledge of excess payment of duty. He has pleaded that the findings given by the Assistant Collector as well as the Collector (Appeals) are not correct in law as general law of limitation will apply. He has pleaded for the acceptance of the appeals.
4. Shri G.V. Naik, the learned Joint CDR who has appeared on behalf of the respondent, states that the appellants have got no case. The refund claims were filed after the expiry of limitation. This Tribunal is the creature of the statute and has to go with the provisions of the statute. In support of his argument, he has referred to two judgments of the Supreme Court in the case of Miles India Ltd. v. Assistant Collector of Customs reported in 1987 (30) ELT 641 (S.C.) : 1985 ECR 289 (S.C.) and Collector of Central Excise v. Doaba Co-operative Sugar Mills claims were filed after the expiry of limitation and are hit by limitation. The appeals may be rejected.
5. We have heard both the sides and have gone through the facts and circumstances of the case. The facts are not disputed. Refund claims were filed much after the expiry of limitation. Hon'ble Supreme Court in the case of Doaba Co-operative Sugar Mills had held that limitation under the Customs Act/Central Excises and Salt Act or rules made thereunder was applicable and the authorities functioning under an Act were bound by its provisions. Para No. 6 from the said judgment is reproduced below: 6. It appears that where the duty has been levied without the authority of law or without reference to any statutory authority of the specific provisions of the Act and the Rules framed thereunder have no application, the decision will be guided by the general law and the date of limitation would be the starting point when the mistake or the error comes to light. But in making claims for refund before the departmental authority, an assessee is bound within four corners of the Statute and the period of limitation prescribed in the Central Excise Act and the Rules framed thereunder must be adhered to. The authorities functioning under the Act are bound by the provisions of the Act. If the proceedings are taken under the Act by the department, the provisions of limitation prescribed in the Act will prevail. It may, however, be open to the department to initiate proceedings in the Civil Court for recovery of the amount due to the department in case when such a remedy is open on the ground that the money received by the assessee was not in the nature of refund. This was the view taken by the Tribunal in a previous decision in the case of Miles India Ltd. v. The Assistant Collector of Customs, but it was assailed before this Court. The appeal was withdrawn. This Court observed that the Customs Authorities, acting under the Act, were justified in disallowing the claim for refund as they were bound by the period of limitation provided therefor in the relevant provisions of the Customs Act, 1962. If really the payment of the duty was under a mistake of law, the party might seek recourse to such alternative remedy as it might be advised. See the observations of the Court in Miles India Ltd. v. The Assistant Collector of Customs 6. In view of the decision of the Supreme Court, we hold that the refund claims made after the expiry of limitation are hit by limitation. The appeals are dismissed.