TMI Blog2019 (2) TMI 1243X X X X Extracts X X X X X X X X Extracts X X X X ..... rom the relevant date of purchase of the goods by such person in terms of Section 11B(5)(B)(e) of the Act - The scheme of Section 11B makes a distinction between right of the manufacturer to claim refund from right of the buyer to claim refund treating them separate and distinct for making an application for refund exercising their right under Section 11B of the Act. In the instant case, indisputedly the application was filed by the appellant as a buyer of the goods(conveyor belts) from M/s. Fenner (India) Ltd. who paid the duty under protest much after a period of limitation(six months) as prescribed under the mandate of law disentitles the claim of refund to the appellant - appeal dismissed - decided against appellant. - CIVIL APPEAL NO. 807 OF 2006 WITH CIVIL APPEAL NO. 7625 OF 2005 CIVIL APPEAL NO. 3217-3218 OF 2010, CIVIL APPEAL NO. 8439-8440 OF 2011, CIVIL APPEAL NO. 9693-9694 OF 2011, CIVIL APPEAL NO. 4992 OF 2012, CIVIL APPEAL NO. 4826 OF 2012 - - - Dated:- 20-2-2019 - A. M. Khanwilkar And Ajay Rastogi, JJ. JUDGMENT Rastogi, J. 1. The present batch of appeals are directed against the judgment and order passed by the Customs, Excise and Service Tax Appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to pending classification of PVC impregnated conveyor beltings dispute in the Court of law and after issue of classification has been settled by this Court in favour of the manufacturer M/s. Fenner (India) Ltd. by judgment dated 28th March, 1995, the central excise duty collected should be refunded by the excise department and there is no bar in claiming of refund in terms of the amendment made under Section 11B of the Act and limitation of six months shall not apply where duty has been paid under protest. 6. In furtherance of the application, show cause notice dated 17th February, 1997 was served by the Department holding that since the appellant did not pay any duty and, therefore, is precluded from making any application under Section 11B of the Act and after affording opportunity of hearing order in original came to be passed by the Authority dated 4th August, 1997 rejecting the refund application filed by the appellant on the ground of limitation and also on unjust enrichment. The appeal preferred by the appellant against order dated 4th August, 1997 before the Appellate Authority, Chennai came to be rejected on the ground of limitation under Order dated 18th January, 1999 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terms of 2nd proviso to Section 11B(1) of the Act and rightly rejected by the competent authority and affirmed by the Tribunal and needs no further interference. 10. Before we proceed to examine the question, it would be apposite to take note of relevant provision of Section 11B of the Act applicable at the relevant time(preamended) which 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 [Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise] before the expiry of [six months] [from the relevant date] [[in such form and manner] as may be prescribed and the application shall be accompanied by such documentary or other evidence (including the documents referred to in section 12A) as 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conveyor beltings from the manufacturer M/s. Fenner (India) Ltd. during the period 20th July, 1988 to 15th January, 1994 indicated in Civil Appeal No. 7625 of 2005. The period for which the refund of excise duty has been claimed differs but in all the cases, applications have been filed by the appellant(buyer) much after the period of limitation which was six months from the date of purchase of goods at the time of filing of the application to claim refund under Section 11B of the Act. 12. Section 11B deals with the claim of refund of duty as paid on his own accord by any person for refund of such duty to the competent authority before the expiry of six months from the relevant date as prescribed but where the duty was paid under protest in terms of the 2nd proviso to Section 11B(1), the period of limitation may not apply. Although the buyer can also apply for refund provided the duty of excise is borne by the buyer and he had not passed on the incidence of such duty to any other person as referred to under Section 11B(2)(e) and the application has been moved within the period of six months from the relevant date of purchase of the goods by such person in terms of Section 11B(5 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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