ORDER
S. Kalyanam, Member (J)
1. The above appeals are directed against the common order of the Collector of Central Excise (Appeals), Madras, dated 31-8-1988 rejecting the appellants’ claim for refund on grounds of limitation under Section 11B of the Central Excises & Salt Act, 1944.
2. Shri Subramaniam, the learned counsel for the appellants, submitted that the appellants under a mistake of law paid basic excise duty calculated at 15% and special excise duty at 5% on the value of the additional sales-tax paid by them for the goods manufactured and cleared for the period August, 1983 to January, 1986 in a sum of Rs. 1,40,543.94. Since the levy was without the authority of law and was paid under a mistake of law, the appellants filed Writ Petitions before the Madras High Court in W.P. Nos. 14382 and 14383 of 1986, which were disposed of on 6-11-1987 with a direction to the Assistant Collector of Central Excise, Madras IV Division, Madras, to dispose of the matter on merits. The learned counsel contended that the learned Assistant Collector without considering the issue on merits, rejected the appellants’ claims on grounds of limitation under Section 11B of the Act, which was upheld under the impugned order by the learned lower appellate authority against which the appeals arise. It was urged that when there is a direction by the High Court to the authorities to consider the issue on merits, the authorities should not have rejected the appellants’ claims by invoking the provisions of limitation and applicability of the bar of limitation is technical in nature and cannot thwart the substantive rights more particularly when there is a direction by the writ court. The learned counsel also referred us to Mitra’s Legal and Commercial Dictionary, 5th edition, and urged that ‘merits’ means real matter in question as opposed to technicalities, the matter of substance as distinct from a matter of form.
3. Heard Shri Sundararaju, the learned SDR.
4. The short question that arises for our consideration in the appeals is whether a statutory authority can by-pass the bar of limitation and grant relief of refund. In the present case it is not disputed that the refund claims are barred by limitation under Section 11B of the Act. We have carefully gone through the order of the High Court in the Writ Petitions cited supra and the Madras High Court has not said anything about the bar of limitation but has merely given a direction to the authorities to consider the matter on merits. It would be relevant to note in this context that even before taking out an application for refund before the authorities under the Act the appellants approached directly the Writ Court and hence the direction was given to the authorities to consider the issue on merits. We are not inclined to accept the plea of the learned counsel that ‘merits’ would exclude from its purview the applicability of bar of limitation and the provisions of the Limitation Act or the period of limitation incorporated in the Excise Act should be construed to be procedural in nature, not substantive in character. Be that as it may, we would like to note that the issue is no longer res integra and is covered by the authoritative pronouncement of the Supreme Court in the case of Miles India Ltd. v. Asst. Collector of Customs 1987 (30) ELT 641 (SC), that a statutory authority cannot traverse beyond the confines of law and grant relief by by-passing-the bar of limitation. We, therefore, uphold the impugned order appealed against and dismiss the appeals. It is open to the appellants to seek such remedies as are open to them under law.
V.P. Gulati, Member (T)
5. I observe that the appellants had gone before the Writ Court seeking relief without any order from the authorities in regard to the refund that has been claimed. There is no specific plea before the Hon’ble High Court that the Departmental authorities should consider their claim in relaxation of the limitation as prescribed under the law. In the absence of that, the authorities have rightly construed the direction of the Court for consideration of the issue on merits i.e., in terms of law under which the relief could be given. The limitation in the statute is part of substantive law and cannot be considered as a technical issue. In view of this the learned lower authority’s order is maintainable.