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TMI Blog2002 (2) TMI 891X X X X Extracts X X X X X X X X Extracts X X X X ..... ese two companies cleared the product at a concessional rate of duty of Rs. 5.50 per kilo litre in terms of notification 75/84. This notification provides for partial exemption from duty to naphtha used in the manufacture of ammonia and fertilisers and contains a condition that where the use of naphtha is in a factory other than the factory of manufacture, the procedure contained in Chapter X shall be followed. This procedure requires issue of a certificate in the factory of use of the exempted material, referred to as CT-2 certificate that it required for use in the manufacture of final product specified in the notification, which is the condition to the notification. The officers having jurisdiction over the respondent s factory, were of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to March and May, 1998. After considering the reply to the notice, the Asst. Commissioner passed orders dismissing the claim. He said that he had no jurisdiction to decide it. He further found that the matter was premature. By following the Tribunal s decision the amount of naphtha which was entitled to refund would have to be determined and this would have to be done by the Asst. Commissioner having jurisdiction over the factory. He also found the claim to be barred by limitation since the invoice and RT 12 returns did not bear the endorsement duty paid under protest as required under the Rule. He therefore dismissed the claim. 3. The respondent appealed this order. In his order disposing of the appeal, the Commissioner (Appeals) said t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Endorsements have not been made on the invoice or RT 12 returns as required in Rule 233B. Therefore it is not correct to say that the duty has been paid under protest. Therefore, the claim which is filed beyond the period of six months from the relevant date is not saved from the bar of limitation. 5. The departmental representative reiterates what the appeal contends. The counsel for the respondent contends that it has been held by the Tribunal in its decision in D.C.M. Data Products v. CCE - 1993 (66) E.L.T. 635 that the requirement in Rule 233B that RT 12 returns and invoice showing payment of duty which bear an endorsement that duty has been paid under protest is procedural and that the failure to do so does not render the protest i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , duty of excise paid by the applicant as refundable he may make an order accordingly. First the proviso to this sub-section enumerates the case in which the duty shall be paid to the applicant, instead of being credited to the Consumer Welfare Fund. Clause (e) under this proviso refers to the duty of excise borne by the buyer if he had not passed on the incidence of duty to any other person. It is clear from this that claim for refund under Section 11B can be made not only by the manufacturer who initially passed the duty but by the buyer of the excisable goods on whom the incidence of duty payable on the goods falls by being included in the price of such goods. No other meaning is possible; any such interpretation would result in clause ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s are stored. Now, where goods are manufactured and cleared on payment of duty, the assessee referred to in the Rule would be a manufacturer on whom the primary liability of payment of duty falls. In such case, therefore, any person who buys the goods from such manufacturer would not be an assessee. By strict interpretation of Rule 233 he will not be entitled to file a protest. 8. As we have noticed in the case before us Indian Oil Corporation, the assessee was liable to pay duty on the goods. It did not file a letter of protest while paying the duty, consequent upon the departmental officers refusing to issue a CT 2 certificate which would permit the respondent to receive oil manufactured by IOC without payment of duty. It is in such c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any person liable to pay duty. In the case before us, it cannot be denied that the respondent was liable to pay duty with regard to quantities of naphtha that it received free of duty in terms of the notification and did not utilise for the purpose specified therein. The benefit of the exemption contained in the notification subject to the procedure of Chapter X being followed Rule 196 in this chapter provides for recovery of duty from the applicant i.e. the person who wishes to avail of the Chapter X procedure in respect of goods obtained under Rule 192 i.e. without payment of duty and not utilised. In fact, the order of the Commissioner of 11-3-97 demanded duty on the quantities of naphtha that the appellant received and used towards the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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