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TMI Blog2009 (4) TMI 159X X X X Extracts X X X X X X X X Extracts X X X X ..... nufacture of Fertilizers, on payment of concessional rate of duty under notification No. 76/84-C.E. dated 1-3-84, as amended. By order dated 8th July, 1997 the Asst. Commissioner, Central Excise, Lucknow rejected the application for registration and to issue CT-2 certificate for procuring Raw Naptha on payment of concessional rate of duty. The respondents filed appeal before the Commissioner (Appeals). By Order-in-Appeal No. 304/CE/KNP/ALLD/98 dated 30-10-98 Commissioner (Appeals) held that the respondents are eligible to avail the benefit of exemption notification and to procure Raw Naptha on payment of concessional rate of duty under CT-2 certificate under Chapter X procedure of the said Rules. He allowed their application dated 12-1-1996. The respondents filed two refund claims on 6-3-99 for the amount of duty of Rs. 9,10,26,730/- and 52,18,698/-, which they paid under protest during the period July, 1996 to December, 1998 on raw Naptha. The Original Authority rejected the refund claims on the ground that refund claims were barred by limitation and they failed to fulfil the condition of Unjust Enrichment and the goods were not accompanied with the proper duty paying documents. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed any appeal against the said order. In this context, the learned Advocate drew the attention of the Bench to the relevant portion of the said order as under :- "It is surprising to note that, why the appellant or their Advocates failed to bring this important judgment before Hon'ble CESTAT, Ahmedabad Bench during the appeal proceedings or at the time of hearing. It is further noticed that, the above CESTAT order No. 480/2004-NB(A) 2004 (171) E.L.T. 181 (Tribunal) Dollar and Company Pvt. Ltd. v. Commissioner in their own case pertaining to Sitapur, West Bengal has been passed by the Hon'ble CESTAT, Northern Bench, New Delhi on 24-5-2004 whereas the CESTAT's de novo order which relates to the present appeal was pronounced on 1-10-2007 i.e. after a gap of more than three years which has already been published in E.L.T. as a citation. Had the appellants promptly brought to the notice of CESTAT, WZB, Ahmedabad, the valuable time of the Hon'ble CESTAT should have been saved from passing the de novo order remanding the appeal to this appellate office and this appellate office also could have been saved from passing this order." 5. After hearing both the sides and on perusal of the rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontended that duty was paid by manufacturer and not by the respondents and, therefore, payment of duty cannot be treated under protest. It is seen that Section 11B(1) of the Act provides that any person claiming refund of any duty of excise may make an application for refund of such duty to the Asst. Commissioner of Central Excise or Dy. Commissioner of Central Excise before the expiry of six months (one year w.e.f. 12-5-2000) from the relevant date. Second proviso to Section 11B(1) provides that limitation of six months shall not apply when duty has been paid under protest. Explanation (B) of Section 11B(5), "relevant date" means, - "(e) in the case of person, other than the manufacturer, the date of purchase of the goods by such person; 7. The submission of the ld. S.D.R. on behalf of the Revenue is impressive, but, we do not find force in the present facts and circumstances of the case. There is no dispute that the respondents claimed concessional rate of duty in terms of notification issued under Central Excise Act, 1944 even who is also purchaser of the goods, which was allowed later on Chapter X of the erstwhile Rules provides remission of duty on goods used for special ind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng of order of refusal to issue CT-2 certificate before the Commissioner (Appeals) amounted to protest only. Viewed from another angle, the claim of the appellant for refund of excess duty paid is as a consequence of passing of the appellate order in their favour and is basically implementation of the order of the Commissioner (Appeals). When non-issuance of CT-2 certificate was challenged by the appellant, the success of their appeal is not an empty formality and the appellate order is required to be implemented, as a result of which CT-2 certificate is required to be issued right from the date of their first claim and the benefit of concessional rate has to be extended from that date onwards. In view of this also, we hold that refund made by the appellant cannot be held to be held barred by limitation." 9. We have also arrived in the same conclusion after examining the matter in other aspects also as discussed above. The finding of Ahmedabad Bench as above also expressed a proactive role with checks and balance between assessee and department. This is supported by the views of Justice Bhagwati, Former Chief of India as mentioned in the Book "Judicial Reflections of Justice Bhagw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice Ministry takes into account only the concessional rate of duty on the naphtha. Since the prices are fixed by the Government, the appellant can sell the fertilizer only at the prices fixed by the Government. Therefore, it is not possible for the appellant to pass on the higher duty burden on the naphtha to its customers. This issue is covered by the ratio of the decision of the Supreme Court in State of Rajasthan v. Hindustan Copper Ltd. In the above case Rectified Spirit was imported for use in the manufacture of copper. Price of copper is fixed by MMTC on the basis of the prevailing price fixed by the London Metal Exchange. Only such price could be charged from the consumers and no part of the excise duty paid on rectified spirit captively consumed in the manufacture of copper could be added to the price of copper which was fixed on the basis of LME prices. Supreme Court held that there is, therefore, no question of unjust enrichment." 11. Further, the Original authority observed that the respondent had not submitted original duty paying documents. The goods were purchased from BPCL, Shahjahanpur, who received from BPCL, Mathura they received from IOCL, Mathura. So, it is not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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