Full Judgment
2. Shri Dave, the Id. advocate, appearing for the appellants, does not dispute the following factual position : The appellants have paid duty on a quantity of 2530 kgs. under G.P. No. 37, dated 14-5-1983. This payment is reported to be by mistake on an excess quantity of 1670.5 kg. They did not point out this excess payment made by mistake in the RT 12 return filed in the month of May, 1983. The officer also did not notice it. Assessment was finalised. However, in the subsequent month viz. June, 1983, they seem to have realised the mistake and pointed out it in the RT.12 returns showing that there was an excess payment and requested for allowing credit in the PLA to the extent of Rs. 18,793, which however, was not acted upon by the Supdt. Subsequently, they filed a refund claim on 17-12-1983 which came to be rejected by the Assistant Collector as time barred and the said order was confirmed by the Collector (Appeals). Hence, the present appeal before the Tribunal. Shri Dave, mainly pleads that it is actually a double payment of duty and duty is not payable on the excess quantity which was not removed. Hence, it should not be considered to be duty but as deposit. In the case or such double payment or duty, the Tribunal in the case of South India Corporation (Agencies) Pvt. Ltd. -1983 (13) E.L.T. 1273 (CEGAT) has held that in a case of non-import of the goods, the duty paid has to be considered to be excess payment and hence Section 27 would not be attracted. He would therefore plead that this judgment would be applicable to this case, because of the fact that the goods were not removed, insofar as the excess quantity is concerned. Hence, time bar will not be available. In the alternative, under Rule 173-1 the assessing officer is bound to extend credit where-ever the erroneous excess payment is made.
Though an endorsement of the credit was made in the subsequent RT 12, that should not be held against the appellants for denying the credit in the PLA. He would therefore request the Tribunal to exercise the inherent powers to direct the Supdt. to allow the credit in the PLA.3. After hearing both the sides, I find that though in this case, on the ground of equity, refund might be allowed, the point of law is somewhat against the appellants for the following reasons.
3A. Under Rule 173-1, the Supdt, while assessing the RT 12 returns filed in the month of May, '83 can point out short payment or allow credit in respect of excess payment in respect of duty payments made in accordance with the approved classification list and price list. The question whether the quantity removed in the Gatepass was in excess and that quantity was not removed, is within the knowledge of the assessee and it is for him to point out then and there, while filing the monthly RT 12 returns so as to enable the proper officer to make an enquiry before completing assessment. In this case, the admitted position is that the excess payment on account of the non-removal of the quantity has not been pointed out in the RT 12 return filed in the month of May 1983. It is also reported before me that the RT 12 return for the month of May, 1983 has been finally assessed. Hence, the Supdt. could not have acted on the endorsement for allowing the credit made only in the RT 12 of June, 1983, because he cannot re-assess the assessment already made by him without any order passed by the higher authority, either in the form of refund order or in the form of order to review the assessment. In view of this position, the Supdt. in not taking cognisance of the endorsement made in the RT. 12 return of June, 1983 cannot be faulted. The only course available with the assessee, who has missed the bus in making the endorsement in the RT. 12 return of the month May, 1983 was to file a refund claim under Section 11B. This claim admittedly has been filed only on 17-12-1983 beyond a period of six months. As per the judgment of the Supreme Court in the case of Miles India, the statutory authorities are bound by the period of limitation prescribed in the statute. I have also carefully looked into the judgment cited by the Id. advocate. I find that the said judgment is with regard to the goods not imported, where the amount is paid in advance in anticipation of the clearance of the goods; whereas, in the instant case, the excisable goods are cleared on Gate Pass indicating the quantity and rate of duty. Hence, I reject the appeal.