COLLECTOR OF CENTRAL EXCISE, CHANDIGARHversusDOABA CO-OPERATIVE SUGAR MILLS LTD., JALANDHAR

A         COLLECTOR OF CENTRAL EXCISE, CHANDIGARH
                             v.
            DOABA CO-OPERATIVE SUGAR MILLS LTD.,
                         JALANDHAR

                               AUGUST 16, 1988
B
       [SABYASACHI MUKHARJI AND S. RANGANATHAN, JJ.]

            Central Excises and Salt Act, 1944: Sections llA. llB, 35A(2)
      and 35L (b)-Excess production rebate-Erroneously granted-Show
      cause notice issued for recovery-Whether valid and permissible-
C     Refund of duty recovered without authority of law-General law
      applicable-Refund claims before departmental authorities-Limita-
      tion provided under Customs/Central Excise Act and Rules thereunder
      applicable.

           Limitation Act, 1963: Limitation-Computation of-Duty levied
Ii>   without authority of law-General law applicable-Starting point-
      When mistake or error comes to light.

            The Superintendent of Central Excise issued a show cause notice
      on November 15, 1981 to the respondent for recovery of 'excess produc-
      tion' rebate erroneously g~anted under Notification No. 108/78. The
E     Assistant Collector, however, on July 31, 1982 held that there was no
      excess Production because of wilful incorrect statement or suppression
      of facts and so held that the notice was barred by lapse of time and
      dropped the demand.

            The Collector of Central Excise exercising powers under Section
F     35A(2) 'Of the Central Excises_ and Salt Act, 1944 issued a review show-
      cause notice on October 6, 1982 and adjudicated the case thereafter.
              '
           The Central Excise and Gold (Control) Appellate Tribunal having
      allowed the appeal of the respondent, the Revenue challenged the said
      order in this Court.
G
            Dismissing the Appeal,

            HELD: l. Section llA of the Act would come into operation only
      when the demand is on account of Central Excise duty short levied or
      not levied or refunded erroneously. The issue in the instant case, was
H     not any of the said reasons. [460E-i
                                        458
C.C.E. v. DOABA CO-COPERATIVE SUGAR MILLS IMUKHARJI, J.]              459

       2. Where the duty has been levied without the authority oflaw or
                                                                              A
without r.eference to any statutory authority or the specific provisions of
the Act and the Rules framed thereunder have·no application, the deci-
sion will be guided by the general law and the date of limitation would
be the starting point when the mistake or the error wolild come into.
light. [460F]
                                                                              B
       3. In making claims for refund before the departmentlal author-
ity, as assessee is bound within the 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 authority 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. [460G]                                    c
      4. It may, however, be open to the department to initiate pro-
ceedings in the Civil Court for recovery of the amount due to the
department in case such a remedy' is open on the ground that the money
received by the assessee was not in the nature ofrefund. [460H]               D

      Miles India Ltd. v. Assistant Collector of Customs, [1985] ECR
289 referred to.

      CIVIL APPELLATE JUR~SDICTION: Civil Appeal No. 283
of 1988.                                                                      E

     From the Order dated 9.10.1987 of the Customs Excise and Gold
Control Appellate Tribunal, New Delhi in Appeal No. F-1744/83-D
(Order No. 808/87-D).

    M.K. Banerjee, Solicitor General, R.P. Srivastava and Mrs.                F
Sushma Suri for the Appellant.

      M. G. Ramachandran for the Respondent.

      The Judgment of the Court was delivered by
                                                                              G
      SABYASACHI MUKHARJI, J. This is a statutory appeal
against the decision of the Customs, Excise and Gold (Control) Appel-
late Tribunal, under Section 35L(b) of the Central Excises & Salt Act,
1944 (hereinafter called 'the Act').
                                                                                  I


      A   sum of Rs.5,60,679.40 was sanctioned to the respondent on           H
    460         SUPREME COURT REPORTS                (1988] Supp. 2 S.C.R.

A the basis of Notification No. 108/78 as an incentive for excess produc-
  tion. On 18.5.1979, the said sum was credited to the Personal Ledger
  Account of the dealer. On 5th November, 1981, the Superintendent of
  Central Excise issued a show cause notice asking the respondent to
  show-cause as to why the sum of Rs.66,306,62, granted in excess under
  the aforesaid notification, be not recovered from it.
B
        On 31. 7.1982, the Asstt. Collector, however, held that there was
  no excess production because of wilful incorrect statement or suppres-
  sion of facts by the respondent. In the premises, he held that the nofice
  was barred by lapse of time according to the statute and, accordingly,
  dropped the demand.
c       On 6th October, 1982, the Collector of Central Excise, Chandi-
  garh, while exercising his power under Section 25A{2) of the Act as it
  stood at the material time, issued a review show-cause notice against
  the order of the Asstt. Collector. The case was adjudicated thereafter
  by the Collector who found that the statutory time limit under Section
D llA of the Act would come into play only where the demand is on
  account of the central excise duty short levied or not levied or
  refunded erroneously.

          Aggrieved thereby, on or about 9th October, 1987, the respon-
    dent preferred an appeal before the Tribunal. The Tribunal allowed
E   the appeal. The propriety of the said decision is being sought to be
    challenged in this appeal. It appears that Section llA of the Act would
    come into operation only when the demand is on account of central
    excise duty short levied or not levied or refunded erroneously. In the
    instant case the issue was not for any of the said reasons.                 '

F         It appears that where the duty has been levied without the
    authority of law or without reference to any statutory authority or 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
G   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 au-
    thorities fun.ctioning 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, how-
H   ever, be open to the department to initiate proceedings in the Civil
C.C.E. v, DOABA CO-COPERATIVE SUGAR MILLS IMuKHARJI, J.]            461

Court for recovery of the amount due to the department in case when        A
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. \•.
The Asstt. Collector of Customs, but it was assailed before this Court.
The appeal was withdrawn. This Court observed that the Customs
                                                                           B
Authorities, acting under the Act, were justified in disallowing the
claim for refund as they were bound by the period of limit;ition proo
vided therefor in the relevant provisions of the Customs Act; 1962. If
really the payment of the duty was under a mistake of Jaw, the party
might seek recourse to such alternative remedy as it might be advised.
See the observations of this Court in Miles India Ltd. v. The Assistant
Collector of Customs, [1985] E.C.R. 289.                                   c
     In the aforesaid view of the matter the Tribunal was right. The
appeal, therefore, ha.s no merits and it is accordingly not entertained
and dismissed. There is no order as to costs.

N.V.K.                                               Appeal dismissed.     D.