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TMI Blog2019 (7) TMI 566X X X X Extracts X X X X X X X X Extracts X X X X ..... disputed and a part of the excise duty for the said period has also been made to the Respondent/Assessee in the present case also and therefore, for the limited short period from 01.03.1994 till 15.05.1994, we do not think that the Assessee deserves to be denied the said refund, merely because he chose to file its application for refund on 16.11.1994. We hold this opinion because the present Assessee has also paid the said excise duty for the aforesaid period under protest and the Second proviso of Section 11B of the Act clearly stipulates that the period of limitation shall not apply, where any duty has been paid under protest. Appeal dismissed - decided against Revenue. - C.M.A. No.4057 of 2005 - - - Dated:- 18-6-2019 - Dr. Justice Vineet Kothari And Mr. Justice C.V. Karthikeyan For the Appellant : Mr.A.P.Srinivas For the Respondents : M/s.Joseph Kodianthara for R1 Senior Advocate for Mr.P.R.Renganath R2-Tribunal JUDGMENT DR.VINEET KOTHARI, J. The Revenue, Commissioner of Central Excise, has filed the present appeal aggrieved by the order of the CESTAT (Customs, Excise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... L and after the extraction of polybutene chemical, the remnant LPG gas was returned back to MRL through another pipeline. Finally, it appears that the Industry prevailed over the Central Government and the said exemption was restored vide Notification No.116/94-CE dated 24th June 1994. 3. In the period between these two Notifications, 01.03.1994 to 23.06.1994 , the supplier MRL paid the excise duty on entire supply of LPG and recovered the same from the Respondent/Assessee and other similar manufacturers of polybutene. The burden of such excise duty was borne by the Respondent/Assessee for this period. Upon the exemption being restored, the Assessees applied for the refund of the excise duty paid and borne by them for this interim period from 01.03.1994 to 23.06.1994 . The same was refused by the Assessing Authority but on an appeal, was granted by the learned Tribunal on the basis of the order passed by the learned Single Judge in the case of another similarly situated Assessee, M/s.Tamilnadu Petroproducts Limited in W.P.No.5047 of 2000, decided on 20.11.2001 . In the Writ Appeal filed by the Revenue against the said order of the learned Single Judge, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5. The learned counsel for the Revenue, Mr.A.P.Srinivas, submitted that the refund under the Notification dated 24th March 1995 in favour of the Respondent/Assessee (KSCL) specifically directed that refund would be subject to the provisions of Section 11B of the Act and since the Assessee made application for refund only on 16.11.1994 , it was not entitled to refund beyond a period of six months from the date of application. He however, submitted that there was no question of any unjust enrichment caused to the Assessee, as it was found by the Adjudicating Authority himself that the Assessee had not passed on the incidence of such excise duty paid and borne by it to its customers. 5. On the other hand, the learned counsel for the Assessee, Mr.Joseph Kodianthara, urged that the Assessee is entitled to a parity with the other similarly situated Assessee M/s.Tamilnadu Petroproducts Limited, which as a result of success in the litigation got refund of the excise duty for the entire period between 01.03.1994 to 23.06.1994. He also submitted that even the present Assessee had been making representations and protests against the revocation of the e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 24th March 1995 also. 7. It is true that paragraph 8 of the said specific Notification under section 5A(2) of the Act stipulates that the amount of the refund as found admissible, would be subject to the provisions of the Section 11B of the Act but we do not find the same provision could be invoked an applied by the Revenue in identical circumstances to the other Assessee, M/s.Tamilnadu Petroproducts Limited. 8. Once the restrictions of Section 11B stood relaxed under the orders of the Court by the Revenue, which they chose not to agitate further in the case of other similarly situated Assessee M/s.Tamilnadu Petroproducts Limited, we do not think it will be appropriate to deny the same parity to the present Respondent/Assessee, as well. Admittedly, the Assessee, was engaged in the peculiar nature of business and got supply of polybutene enriched LPG from only one supplier MRL and the entire supply was through pipelines and after the manufacturing activity undertaken by the Assessee for extraction of polybutene, the remnant part of the LPG gas was undisputably returned back to the supplier MRL through another pipeline and that is w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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