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M/s. Oswal Chemicals & Fertilizers Ltd. Versus Commissioner of Central Excise, Bolpur

2015 (4) TMI 352 - SUPREME COURT

Denial of refund claim - Bar of limitation - Held that:- In terms of Section 11B, the application for refund is to be made within six months. The assessee is claiming refund for the period from 25.09.1996 to 16.10.1996. An application for refund was made on 30.04.1999 which was beyond six months period. The appellant however, is relying upon the second proviso to Section 11B which stipulates that the limitation of six months would not apply where any duty has been paid under the protest. - appel .....

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, 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 .....

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the assessee, it is seeking refund of duty which was initially paid by M/s.Bharat Petroleum Corporation Limited (hereinafter referred to as 'BPCL'). According to the appellant, this duty was paid by it to the BPCL on purchase of Naphtha from BPCL. The period involved is 25.09.1996 to 16.10.1996. Under Rule 192 of the Central Excise Rules 1944, Naphtha can be procured without payment of duty as provided under Notification No. 75/84-CE dated 01.03.1984 as well as Notification No. 8/96-CE d .....

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ssed 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 duty. How .....

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er which had paid the duty to the authorities, the appellant had no locus standi to claim the refund. The second reason given was that the application filed under Section 11B of the Central Excise Act, 1944 (hereinafter referred to as 'Act') was not preferred within six months and therefore, was time barred. The appellant filed the appeal before the Commissioner of Central Excise (Appeals) challenging the aforesaid order. This appeal was, however, dismissed on 14.08.2001. Further appeal .....

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nt 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 c .....

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s the applicant may furnish to establish that the amount of duty of excise in relation to which such refund is claimed was collected from, or paid by, him and the incidence of such duty had not been passed on by him to any other person: Provided that where an application for refund has been made before the commencement of the Central Excises and Customs Laws (Amendment) Act, 1991, such application shall be deemed to have been made under this sub-section as amended by the said Act and the same sh .....

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ieved with the payment of the said duty and challenges the order successfully can seek the refund. This becomes apparent from the reading of clause (e) to Explanation (B) appended to the aforesaid provision which 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 go .....

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and Explanation (B) caters to such other person. It is not even necessary to embark on detailed discussion on this aspect inasmuch as we note that the Constitution Bench of this Court in 'Mafatlal Industries Ltd. and others v. Union of India and others' [1997(5) SCC 536] has already settled this aspect in the following words: - (xii) Section 11-B does provide for the purchaser making the claim for refund provided he is able to establish that he has not passed on the burden to another per .....

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given by the CESTAT, as mentioned above, is that the appellant had preferred this application before a wrong authority. Here we find that the appellant had filed the refund claim before the Central Excise Authorities at Durgapur. The appellant had purchased the material from IOCL which is having its refinery at Durgapur. The show cause notice was also issued by the Superintendent of Central Excise at Durgapur. It appears that the CESTAT is influenced by the reason that the depot is located at H .....

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asons 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 did not give final pronouncement thereupon. In normal course, we could have remitted the case back to the CESTAT for decision on that issue. However, we have necessary factual details before us and as the matter is quite old, we deem it apposite to decide this issue of limitation in these proceedings itself rather than remanding the ca .....

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