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TMI Blog2019 (2) TMI 1243X X X X Extracts X X X X X X X X Extracts X X X X ..... onal Bench, Chennai (hereinafter being referred to as "Tribunal") rejecting the claim of the appellant (buyer) for refund of the claim of the central excise duty under Section 11B of the Central Excise Act, 1944(hereinafter being referred to as "the Act") which was paid under protest by the manufacturer(M/s. Fenner (India) Ltd.). 2. The short point for consideration in the present batch of appeals is whether the period of limitation of six months shall apply where the refund of central excise duty has been claimed by the buyer and paid by the manufacturer(M/s. Fenner (India) Ltd.) under protest. 3. With the consent of the parties, we are dealing with the facts of Civil Appeal No. 7625 of 2005 as all other are analogous on facts and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment was made towards central excise duty by the manufacturer(M/s. Fenner(India) Pvt. Limited, Madurai) under protest due 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 hold ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... und claim within time. 8. Learned counsel submits that when the duty paid by the manufacturer is permitted to be claimed by the buyer who ultimately bears the burden, protest made by such manufacturer at the time of paying the central excise duty for which the buyer can also apply for the refund and bar of limitation of six months may not apply to the buyer claiming refund of excise duty paid by the manufacturer under protest. 9. Per contra, learned counsel for the respondent while supporting the order of the Tribunal submits that although the buyer can move an application for refund of central excise duty under the provision of Section 11B of the Act provided the duty of excise borne by the buyer had not passed on the incidence of such d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Customs Laws (Amendment) Act, 1991, such application shall be deemed to have been made under this subsection as amended by the said Act and the same shall be dealt with in accordance with the provisions of subsection (2) substituted by that Act:] [Provided further that] the limitation of [six months] shall not apply where any duty has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xempt from payment of duty (eb) .... (ec) .... (f) ...." 11. It is not disputed that the excise duty was paid by the manufacturer(M/s. Fenner (India) Ltd.) under protest to the department and the dispute with regard to the classification of the product finally came to be decided by this Court in M/s. Fenner India's case(supra) and the manufacturer M/s. Fenner (India) Ltd. never moved any application for refund of the excise duty at any given point of time. The appellant herein is the buyer and purchased 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 d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 accounts of a buyer(distributor). Consequently, there is no merit in the argument advanced on behalf of the respondent that the distributor was entitled to claim refund of "on account" payment mad ..... X X X X Extracts X X X X X X X X Extracts X X X X
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