TMI Blog2017 (1) TMI 284X X X X Extracts X X X X X X X X Extracts X X X X ..... t” payment made under protest by the manufacturer without complying with Section 11B of the Act, find that the refund claim filed by the appellant is beyond one year and therefore, the same is time-barred - appeal dismissed - decided against appellant. - E/4165/2005 - A/94197/16/EB - Dated:- 1-12-2016 - Shri Ramesh Nair, Member (Judicial) And Shri C J Mathew, Member (Technical) None for the appellant Shri Ashuthosh Nath, Astt. Commissioner (AR) for the respondent Per: Ramesh Nair: The fact of the case is that the appellant are principal manufacturer of medicaments falling under Chapter 30 of Central Excise Tariff Act, 1985. They got their physician samples manufactured from M/s Atra Pharmaceuticals Ltd, Waluj, Aurang ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anctioned. Being aggrieved by the order-in-original dated 03/06/2005 an appeal was filed by the appellant before the Commissioner (Appeals) who vide the impugned order rejected the appeal of the appellant holding that: Protest lodged by the manufacturer is of no help to the appellant s refund claims which are thereby time barred in terms of Explanation (B)(e) appended to Section 11B of CEA 1944. 3. Being aggrieved by the impugned order-in-appeal the appellant is before us. 4. None appeared on behalf of the appellant despite notice nor any adjournment request was received. On perusal of the grounds of appeal, we find that the appellant s submission is that refund claim has already been sanctioned and credited into Consumer Welfa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the provisions for refund provided under Section 11B. Payment of duty under protest by the manufacturer cannot be extended for filing refund by the purchaser i.e. the appellant, hence time-limit cannot be relaxed on the basis of payment under protest by the manufacturer. The appellant has to comply with the terms of unjust enrichment as well as on limitation and the appeal has failed to meet such compliance as refund claim was filed belatedly beyond the prescribed time-limit and also not satisfied the aspect of unjust enrichment. The learned AR rely upon the following decisions: i. Western Coalfields Ltd v. Commissioner of Central Excise, Aurangabad 2011 (273) ELT 532 (Tri.-Mumbai) ii. Commissioner of Central Excise, Aurangabad v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 13. The point which still remains to be decided is - whether the respondent herein was entitled to refund without complying with Section 11B of the Act on the ground that it had stepped into the shoes of NIIL (manufacturer) which had paid the duty under protest. It was argued on behalf of the respondent that NIIL had paid the excise duty under protest pending final assessment, which was ultimately decided in favour of NIIL and since NIIL had sold the product to the respondent herein, the respondent was entitled to the benefit of the second proviso to Section 11B(1) which inter alia stated that limitation of six months shall not apply where duty had been paid under protest. We do not find any merit in this argument. In the case of Bom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. Lastly, as stated above, Section 11B dealt with claim for refund of duty. It did not deal with making of refund. Therefore, Section 11B(3) stated that no refund shall be made except in terms of Section 11B(2). Section 11B(2)(e) conferred a right on the buyer to claim refund in cases where he proved that he had not passed on the duty to any other person. The entire scheme of Section 11B showed the difference between the rights of a manufacturer to claim refund and the right of the buyer to claim refund as separate and distinct. Moreover, under Section 4 of the said Act, every payment by the manufacturer, whether under protest or under provisional assessment was on his own account. The accounts of the manufacturer are different from the ac ..... X X X X Extracts X X X X X X X X Extracts X X X X
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