TMI Blog2015 (4) TMI 352X X X X Extracts X X X X X X X X Extracts X X X X ..... it had filed the appeal against the Order-in-Original passed by the Assistant Commissioner denying CT-2 certificate which should be treated as protest. It is argued that the protest as stipulated under Rule 233B of the Rules refers only to a manufacturer and since the appellant is not the manufacturer for whom no mode of protest is stipulated, even filing of the appeal should be treated as protest. Protest as per Rule 233B refers only to a manufacturer and therefore, a person like the appellant, who was only a purchaser could not have made any protest in terms of Rule 233B. Therefore, if protest is lodged in one form or the other that should be construed as satisfying the condition stipulated in second proviso to Section 11B. Having said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant was also simultaneously requesting the authorities to issue CT-2 certificate to enable it to procure Naphtha without payment of duty. This certificate was initially refused by the Departmental authorities vide Order-in-Original dated 08.07.1997 passed by Assistant Commissioner of Central Excise, Sitapur Division. Against that order, the appellant had preferred the appeal before the Commissioner (Appeals) in which the appellant succeeded as the said appeal was allowed by the Commissioner (Appeals) on 30.10.1998, thereby granting permission to the appellant to procure Naphtha without payment of duty. It is not in dispute that, thereafter, armed with the said certificate the appellant has been purchasing Naphtha without payment of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ely, the appellant lacked locus standi to file the refund claim. Another reason which had persuaded the CESTAT to dismiss the appeal was that the refund claim was preferred before a wrong authority. Insofar as dismissing the application on the ground that the appellant did not have locus standi, we find that view taken by the authorities below is clearly erroneous in law. Section 11B of the Act which contains the provision for making a claim for refund of duty uses the expression any person who is eligible to claim refund of the duty. The relevant portion of Section 11B reads as under: Section 11B. Claim for refund of duty. - (1) Any person claiming refund of any duty of excise may make an application for refund of such duty to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is as under: Explanation. - For the purposes of this section, - .......................... .......................... (B) relevant date means, - .......................... .......................... (e) in the case of a person, other than the manufacturer, the date of purchase of the goods by such person; .......................... Explanation (B) defines relevant date . Though this date has reference to the calculation of limitation period for the purposes of seeking refund of the duty under the aforesaid provision. However, clause (e) while stating the relevant date clarifies that in case of a person, other than the manufacturer, the date of purchase of goods by other person would be the relevant date. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appears that the CESTAT is influenced by the reason that the depot is located at Haldia and on that ground, it has come to the conclusion that the authorities at Durgapur had no jurisdiction. The aforesaid reason given by the CESTAT is factually incorrect. We find that the purchases were from depot at Rajbandh under the IOCL refinery at Durgapur and therefore, the Central Excise authorities at Durgapur had the requisite jurisdiction over IOCL Depot located at Rajbandh, as it comes under Durgapur Commissionerate. Our aforesaid discussion leads to the conclusion that the two reasons given by the CESTAT in dismissing the appeal of the assessee are not correct. As noted above, insofar as the question of limitation is concerned, the CESTAT d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ight in his submission that protest as per Rule 233B refers only to a manufacturer and therefore, a person like the appellant, who was only a purchaser could not have made any protest in terms of Rule 233B. Therefore, if protest is lodged in one form or the other that should be construed as satisfying the condition stipulated in second proviso to Section 11B. Having said that, in the present case, we find that the appeal was filed only in September, 1997 or thereafter, though exact date of filing the appeal is not disclosed. Even if this appeal is treated as a form of protest that was much beyond six months period from the date of purchase that is 25.09.1996 to 16.10.1996. Therefore, the so-called protest would not come to the aid of the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
