2019 (4) TMI 1277 - AT - Customs

Refund claim - benefit of concessional rate of duty - Effective rate of duty for import of LPG - time limitation - section 27 of CA, 1962 - appellant claims that the duty are paid under protest - HELD THAT - Section 27 of the Customs Act,1962, specifies a period of six months from the date of payment of duty for filing refund claims - in the present case, the refund claims filed on 19.08.2005, are time barred in respect of 10 Bills of Entry. Only in respect of balance 5 Bills of Entry, the refund claims can be entertained on merit. There is nothing on record to support the claim of the appellant that the duty have been paid under protest . None of the document such as Bills of Entry whose copies are attached with the Appeal Paper Books, indicates as paid under protest . The appellant has also not submitted any other documentary evidence to support their claims. As such, the refund claims in respect of 10 Bills of Entry have been rightly rejected by the lower authorities as time barred. Whether concessional rate of duty can be extended for Propane and Butane by considering them as Liquefied Petroleum Gases (LPG), even when sub-headings were not listed in the Notification? - HELD THAT - The Notification No.21/02-Cus dt. 01.03.2002 (as amended), during the period of dispute, has extended the benefit of concessional rate of duty to Liquefied Petroleum Gases (LPG) to specify the sub-heading as 27111900. A plain and simple reading of the entries would lead to conclusion that concessional rate will be applicable to only those Liquefied Petroleum Gases (LPG) falling under sub-heading 27111900. The goods imported have been described as Propane/Butane (LPG) and the respective sub-headings have been declared in the Bills of Entry - since the Notification has specified only Liquefied Petroleum Gases (LPG) falling under 27111900 for the concessional rate, it leads to the conclusion that Propane and Butane imported by the appellants will not be entitled to the concessional rate, even if, they are considered as forms of Liquefied Petroleum Gases (LPG). The appellant has argued that the amendment to the Notification carried out through amending Notification No.37/2005-Cus dated 02.05.2005, should be considered as retrospective. The wording of the Notification gives no clue or indication to the effect that substitution of the entry is to be retrospectively. The amending Notification is dated 02.05.2005 and hence the benefit will be applicable only from that date. Rejection of refund claims in respect of 10 Bills of Entry discussed in detail at the preceding Paragraphs, is upheld - Refund claims in respect of balance 5 Bills of Entry have been rightly rejected in the impugned order. Appeal dismissed - decided against appellant.

Summary

Issues Involved:

1. Entitlement to the benefit of concessional or nil rate of duty under specific Customs Notifications for the import of LPG.
2. Time-barred refund claims under Section 27 of the Customs Act, 1962.
3. Interpretation of the term "Liquefied Petroleum Gas" to include Propane and Butane.
4. Retrospective applicability of amending notifications.

Issue-wise Detailed Analysis:

1. Entitlement to Concessional or Nil Rate of Duty:

The appellant, engaged in refining crude oil and marketing petroleum products, imported LPG classified under sub-headings 27111200 (Propane) and 27111300 (Butane) through Haldia Port. They claimed the benefit of a 5% concessional rate of duty under Notification No. 21/2002-Cus (as amended by Notification No. 82/04-Cus) and a "nil" rate of duty under Notification No. 11/05-Cus. The lower authorities rejected these claims, stating that the concessional rate applied only to LPG under sub-heading 27111900, not to Propane or Butane.

2. Time-barred Refund Claims:

The refund claims for 15 Bills of Entry were filed on 19.08.2005 for imports made between August 2004 and April 2005. The jurisdictional Assistant Commissioner and the Commissioner (Appeals) rejected 10 out of these 15 claims as time-barred under Section 27 of the Customs Act, 1962, which specifies a six-month period for filing refund claims. The appellant argued that the duty was paid under protest, which would exempt them from the time bar. However, the Tribunal found no evidence supporting this claim, upholding the rejection of the 10 time-barred claims.

3. Interpretation of "Liquefied Petroleum Gas":

The appellant argued that LPG includes mixtures of Propane and Butane, supported by decisions from the Bombay and Bangalore Benches of the Tribunal. They cited the AEGIS LOGISTICS Ltd. case, where the Tribunal recognized Propane and Butane as forms of LPG eligible for concessional duty under a Central Excise Notification. However, the Tribunal noted that the specific Customs Notification during the disputed period only mentioned LPG under sub-heading 27111900, not Propane or Butane. Therefore, the imported goods did not qualify for the concessional rate.

4. Retrospective Applicability of Amending Notifications:

The appellant contended that the amendment made by Notification No. 37/05-Cus dated 02.05.2005, which included sub-headings 27111200 (Propane) and 27111300 (Butane) for a "nil" rate of duty, should apply retrospectively from 18.08.2004. The Tribunal, however, found no indication in the notification's wording to support retrospective application. The benefit of the amendment was deemed applicable only from 02.05.2005, following the principle of strict interpretation of exemption notifications as laid down by the Supreme Court in the Dilip Kumar & Company case.

Conclusion:

The Tribunal upheld the rejection of refund claims for 10 Bills of Entry as time-barred and found no merit in the remaining 5 claims due to the specific wording of the applicable notifications. Consequently, the appeal was rejected, and the impugned order was sustained.