2023 (3) TMI 798 - AT - Central Excise

Refund of differential duty paid post clearance of goods upon amended notification - enhancing rate of duty of Excise - Certain clearances were made on 12.11.2014 and 02.12.2014 during the course of the day but rates of duties were enhanced on those two dates vide Notification Nos. 22/2014-CE and 24/2014-CE respectively from its previous rate of duty applicable since 17.03.2012 as per Notification No. 12/2012-CE. Appellant s claim is that such notifications enhancing duties came to the knowledge of the Oil Industry very late in the evening and much after the clearance but to avoid any future complicacy, differential Excise duty basing on calculation at the higher rate as per the amended notifications were paid with a protest note. HELD THAT - Appellant had admitted therein that it had knowledge about such enhancement on the same day, though it came late in the evening subsequent to the clearance of goods made during the course of day upon rising of invoice with old rate of duties prevailing at the time of clearance. As could be further noticed from the order of the Adjudicating Authority and Commissioner (Appeals), there was no pleading made before them that the Notifications came on the next day of its issue and Appellant itself also came to know about the same through the RTI application reply received in 2019. Even this fact of publication of both the Notifications on the next day of its issue was not within the knowledge of the Appellant nor it had taken the same as additional ground of appeal though we have accepted the same as additional piece of evidence and taken the same on record as those are issued by the office of the Director of Publication which is a public authority for which RTI reply can be put in the category of public documents. The submissions of learned Authorised Representative that the Notifications were issued and uploaded in the website of CBEC is acceptable for the reason that Appellant also admitted to have knowledge about such amended Notification that reached the Oil Industries in the late evening but going by sub-Section (5) of Section 5A, Issued for publication and completion of publication in the Gazette of India are pre-conditions before the same is offered for sale. Therefore, uploading in the website of the CBEC cannot alone attach enforceability to those Notifications. By the time order was passed by the Commissioner (Appeals), except on issue of unjust enrichment which Appellant s claimed to have crossed the bar in its refund application itself by annexing sample copies of the invoices with realisation of tax at the old rate, no illegality or irregularity could be noticeable therein but having regard to the fact that law on the issue has evolved and refined itself through judicial decisions and has become law of the land after the full Bench of the Hon'ble Supreme Court dealt the same exhaustively taking into account all judicial precedent vis-a-vis the provisions of Excise Act and Section 5A being peri materia to Section 14 and Section 25(4) of the Customs Act, we thought it expedient, just and proper to modify the order passed by the Commissioner (Appeals), so as to extend the benefits to the Appellant. The order passed by the Commissioner of Central Excise (Appeals), Mumbai-II vide Order-in- Appeal No. PK/18 19/M-II/2016 dated 08.09.2016 observing that the Notification would be effective from the date of its issue is modified to the extent that the said Notifications would be effective from the date and time of its publication in its Official Gazette which were published on 13.11.2014 and 03.12.2014 respectively - appellant is entitled to the benefit of refund - appeal allowed.

Summary

Issues involved:
The denial of refund of differential duty paid post clearance of goods upon amended notification enhancing the rate of duty of Excise.

Summary:

Issue 1: Knowledge of amended duty rates and effective date of notification
The Appellant, a public sector undertaking, paid differential Excise duty based on amended notifications received after clearance of goods. The Commissioner (Appeals) rejected the refund claims, stating the notifications were effective from the date of issue. The Appellant argued that the notifications were published in the Gazette after the clearance, citing legal precedents. The Tribunal found that the Appellant had knowledge of the amendments on the same day, but the notifications were published the next day. Referring to relevant legal provisions and recent judicial decisions, the Tribunal modified the order to make the notifications effective from the date of publication, allowing the refund claims.

Issue 2: Enforceability of notifications and applicability of General Clauses Act
The Respondent argued that the notifications were enforceable from the date of issue as they were uploaded on the CBEC website on the same day. However, the Tribunal emphasized the importance of publication in the Official Gazette for enforceability. It noted the evolution of law through recent judgments, ruling that notifications under delegated authority do not have retrospective effect and do not reopen assessments. The Tribunal, considering the refined legal position, modified the Commissioner (Appeals) order to extend the benefit of refund to the Appellant based on the date of publication in the Official Gazette.

Conclusion:
Both appeals were allowed, modifying the order to make the notifications effective from the date and time of their publication in the Official Gazette. The Appellant was granted the benefit of refund with all consequential relief, based on the clarified legal interpretation.