Page 96 - ELT_1st July 2020_Vol 373_Part 1

6 EXCISE LAW TIMES [ Vol. 373

was in the nature of clarification of the prevailing law on the point and that
the payment of duty by the assessee for the aforesaid period was not occa-
sioned by their mistake or misconception. On the other hand, the Court
held, the payment of duty was of a purely compulsive mode of recovery by the
Revenue on the basis of misconception of the Revenue authorities, which
was clarified by the Board in the aforesaid letter. On this basis, it was held
that the limitation provisions of Rule 11 ibid had no application to refund claim.
According to the present appellants, the ratio of the High Court’s decision
is in support of their plea that the limitation provisions of Section 11B are
not applicable to the refund claim in question. The Revenue, through Ld.
SDR, has rebutted this argument by correctly distinguishing the instant
case from the Bata Shoe Company case. We also do not find any parallel between
the two cases. In the Bata Shoe Company’s case, the payment of duty was un-
der protest right from the beginning, whereas in the instant case the duty was not
paid under protest. Again, in the Bata Shoe Company’s case, the Board’s letter
was held to be a clarification of the prevailing law, whereas in the instant
case the ad hoc exemption order issued by the Central Government under
Section 5A(2) of the Central Excise Act operated in an entirely different
way. The exemption order granted exemption from payment of duty in re-
spect of coin blanks, which were otherwise eligible to duty of excise under
the Central Excise Tariff. Further, in the Bata Shoe Company’s case, as ob-
served by the High Court, the departmental authorities themselves had accepted
the fact Rule 11 of the Central Excise Rules was not applicable to the refund
claim in that case. In the instant case, it has ever been the case of the Reve-
nue that the appellants’ claim for refund of duty paid during 1-1-94 to 17-5-
94 is time-barred under Section 11B. The Revenue has never disengaged Section
11B. In the circumstances, the appellants get no aid from the High Court’s judg-
ment in the Bata Shoe Company case which has been correctly distinguished by Ld.
SDR. On the other hand, Ion Exchange (supra) relied on by the SDR firmly
supports the Revenue’s case. A claim for refund of customs duty, filed by the
assessee on the basis of an ad hoc exemption order, was the subject matter of that
case. It was argued by the assessee that the cause of action for the claim re-
fund had arisen only after the ad hoc exemption order was issued and hence
the time limit for the claim was to be computed from the date of issue of ex-
emption order. The Tribunal found that there was no provision in the Customs
Act for computing the time limit as suggested by the assessee and accord-
ingly, rejection of the refund claim was upheld. There was a claim for a pe-
riod prior to 28-9-96. For reasons which we have already noted, the above
view taken by the Tribunal in Ion Exchange (supra) must be followed in this case.
We also note that the above view was followed by the Tribunal in the case
of K. Viswanathan (supra) also.
13. It was argued by Ld. Counsel that, if the ad hoc exemption order of the
Central Govt. covering the goods already cleared on payment of duty was
not given effect to, the assessee would be put to hardships which was not
intended by the Govt. This argument was opposed by Ld. SDR by relying
on the Supreme Court’s decision in J.K. Spinning and Weaving Mills Ltd. and
Another v. Union of India and Others - 1987 (32) E.L.T. 234 (S.C.). She has re-
ferred to paragraphs 30 & 33 of the Apex Court’s Judgment. In the cited
case, certain amendments to Rules 9 & 49 of the Central Excise Rules, 1944
were considered by the Court. These amendments had been made with ret-
rospective effect, which could become a potential weapon for the Revenue
to raise demands of duty for past period up to 28-2-1944. It was argued by
the assessee that, if the department reopened the past assessments for rais-
ing such demands, it would be harsh for them. This apprehension was re-
jected by their Lordships who observed that any such demand would be
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