Decided on September 01,1986



S.Kalyanam, - (1.)SINCE the above appeals arise out of a common order of Collector of Central Excise (Appeals), Madras dated 6-3-1986, they are taken up together and disposed of by a common order.
(2.)The appellants herein are manufacturers of bicycle chains, industrial and automotive chains and have cleared them on payment of duty. The appellants took out refund applications in respect of the duty paid by them for the clearances effected in the years 1981 and 1982. The refund applications were rejected by the authorities below on grounds of limitation in terms of Section 11B of the Central Excises and Salt Act, 1944. The present appeals are against such a rejection of the appellants' refund claims.
Shri Ranganath, Tax Executive of the Appellant-Company appearing on behalf of the appellants submitted that the correct legal position came to be known to the appellants only after the judgment of the Supreme Court in Bombay Tyre International case was pronounced by the Supreme Court. It was urged that the appellants are entitled to relief in respect of the duty paid on the equated freight charges included in the assessable value. Since collection of duty by the Department on the same is against law and illegal, the appellants would be entitled to the refund of the same without being hampered by any bar of limitation. It was further urged that under the impugned order the appellants' plea has been negatived on the ground that even the duty paid under protest has been negatived on the ground that even the duty paid under protest was not in terms of Rule 233B(1) of the Central Excise Rules, 1944 and it was urged that Rule 233B(1) is merely procedural in nature and regulatory in character and would not whittle down the appellants rights even if there are certain procedural infractions. It was urged that if the duty has been paid under protest that would suffice and deviation from the procedural formality is only an irregularity that is curable.

(3.)HEARD Shri Bhatia, the learned S.D.R. In the present case the appellants filed refund claims in respect of the tax paid for the years 1981 and 1982 respectively for a sum of Rs. 26,053.63 and Rs. 32,679.65. The original authority had observed that in respect of the duty relating to the clearances effected in 1981 and 1982 the refund claims were filed only on 29-3-1984. This finding of the original authority has not been specifically assailed by the appellants in the appeal grounds. Assuming for the purpose of argument that the appellants paid the duty under general protest from January, 1981 that would not also in any way help the appellants because as and from 11-5-1981 Rule 233B came into force. Rule 233B clearly enjoins on the appellant the procedure to be followed where duty is paid under protest such as, delivery to the proper officer of the letter of protest, giving grounds for payment of duty under protest etc. The plea of the appellants that infraction of Rule 233B would only be procedural in nature and would not take away the rights of the appellants if there had been some form of protest or other, is not legally tenable because such a construction would render the very Rule 233B otiose when the legislature has specifically incorporated a particular method to be adopted by the appellant to protest against payment of duty. If the same is not conformed to, it would be construed as only payment without any protest. It is not disputed before me that even the alleged protest now pleaded on behalf of the appellants was not in terms of Rule 233B of the Central Excise Rules. Likewise, it is conceded fairly by Shri Ranganathan on behalf of the appellants that even the alleged protest for the period January 1981 till 10th May, 1981 has not been specifically pleaded either before the original authority or the lower appellate authority or in the appeal before me It is elementary law that a plea that has not been taken cannot be considered and apart from that there is also no evidence before me regarding the payment under general protest from January, 1981 till 10th May, 1981 In these circumstances the refund claims of the appellants admittedly being time-barred, have been rightly rejected under the impugned orders now appealed against. The plea of the appellants that when collection is made either by mistake of law or without the authority of law the aggrieved party would be entitled to refund thereof without being hampered by any bar of limitation is not legally tenable. The legal position is well settled that a statutory Tribunal cannot traverse beyond the confines of law and afford a relief by way of refund to an aggrieved party even if the duty had been collected by the authorities by mistake of law unless the refund application has been filed within the prescribed time limit. I, therefore, do not find any substance in the appeals and the appeals are accordingly dismissed.

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