K.C. Agrawal, J. - (1.) M/s Dhampur Sugar Mills limited Dhampur district, Bijnor, has filed this petition under Article 226 of the Constitution for quashing the order of the Asstt. Collector, Central Excise, Moradabad, dated 25 -8 -1986 by which the application of the petitioner made for refund of the excise duty or for granting an additional rebate has been rejected on the ground inter alia, that it was time barred.
(2.) The petitioner's counsel urged that the view taken by the Asstt. Collector was incorrect. For the argument advanced, he relied on Sec. 11B of the Central Excises and Salt Act, 1944. By reading the relevant provisions, specially clause (e) of Sub -section 5 of Sec. 11B, learned counsel submitted that since the provisional assessment had been made against the petitioner, the cause of action for claiming refund could not be said to have become barred by time. It was submitted that under the aforesaid clause of Sec. 11B(5) the period of six months stated in Sub -section 1 of Sec. 11B would start running from the date of making of the final assessment. Counsel contended by referring to us the writ petition as well as its annexure and also the counter affidavit that since no final assessment had been made, the question of the petitioners' claim becoming time -barred did not arise. When we go through the judgment and order of the Asstt. Collector we find that the Asstt. Collector has given a number of points for holding that the claim of the petitioner was time barred.
(3.) Counsel for the petitioner contended that it will not be necessary for this Court to go into the various points decided by the Asstt. Collector on the question of limitation when this court holds that under clause (e) of Sub -section 5 of Sec. 11B, the view taken by the Asstt. Collector was erroneous. It is not possible at this stage of the proceedings to express any concluded opinion on this argument of the petitioner's counsel. Since the statute under which the claim has been preferred by the petitioner provides for an appeal, it appears to us that the petitioner must avail that right by preferring an appeal.;