ORDER
P.K. Desai, Member (J)
1. This appeal is directed against the captioned order in appeal confirming the Order-in-Original dated 21-9-1984, where the refund claim filed by the appellants was rejected as time barred.
2. Shri Patil, the ld. advocate, appearing for the appellants, submits that pursuant to the decision of the Gujarat High Court, they realised that the duty paid during the period from 1-3-1975 to 28-2-1981 was wrongly paid and was under the mistake of law and therefore, they filed a claim for refund on 28-10-1983. In his submission, Rule 233B was introduced on 1-6-1981 and as such, for the duty paid earlier, procedural requirement of Rule 233B was not called for. He has referred to the classification lists filed on 9-7-1980, 9-8-1980 and has submitted that they have claimed for Nil rate of duty. In his submission, even the classification lists and covering letter ought to be taken as raising a protest and hence, the duty paid thereafter, in any case, will be saved from the operation of limitation prescribed.
3. After hearing Shri Singh, the ld. DR, it is clear from the records that the refund claim for the first time is filed on 28-10-1983 and the period covered is 1-3-1975 to 28-2-1981. Thus the period covered is beyond six months permitted under Section 11B of the CESA. The classification lists do not mention that the duty was being paid under protest. Even before introduction of Rule 233B, it was necessary for the party to lodge a protest for claiming exemption from applicability of the limitation. That is not done here. It is not shown that the duty has been paid under protest. The claim, therefore, would fall within the ambit of Section 11B and having been filed beyond the period of six months, is clearly barred by limitation. The approach of the authority below is therefore, perfectly in conformity with the statutory provisions.
4. Shri Patil has referred to the decision of the Calcutta High Court in the case of Assistant Collector of Central Excise v. Calcutta Chemical Company – 1992 (62) E.L.T. 511 (Cal.) and also the decision of the Bombay High Court in the case of Union of India v. Chemical Process Equipments Pvt. Ltd. – 1992 (59) E.L.T. 377 (Bom.) and has pleaded that when the duty has been under mistake of law, general period of limitation would apply and Section 11B will have no operation. To negative the contention, one has to simply refer the decision of the Supreme Court in the case of Miles India reported in 1987 (30) E.L.T. 641 (SC) and also in the case of Doaba Co-operative Sugar Mills – 1988 (37) E.L.T. 478 (SC) as also the decision of the Tribunal in the case of Britannia Industries Limited – 1989 (40) E.L.T. 170 (Tribunal) for holding that the Tribunal being the statutory authority, have no right to go beyond the statutory provisions laid down. Under these circumstances, we cannot ignore the provisions of Section 11B and sanction the refund claim. The decisions cited by the ld. advocate are also in relation to the Writ Petition filed before the High Court. Under these circumstances, there is no merit in the appeal and is, therefore, rejected.
