TMI Blog2019 (4) TMI 1277X X X X Extracts X X X X X X X X Extracts X X X X ..... nd Butane by considering them as Liquefied Petroleum Gases (LPG), even when sub-headings were not listed in the Notification? - HELD THAT:- The Notification No.21/02-Cus dt. 01.03.2002 (as amended), during the period of dispute, has extended the benefit of concessional rate of duty to Liquefied Petroleum Gases (LPG) to specify the sub-heading as 27111900. A plain and simple reading of the entries would lead to conclusion that concessional rate will be applicable to only those Liquefied Petroleum Gases (LPG) falling under sub-heading 27111900. The goods imported have been described as Propane/Butane (LPG) and the respective sub-headings have been declared in the Bills of Entry - since the Notification has specified only Liquefied Petroleum Gases (LPG) falling under 27111900 for the concessional rate, it leads to the conclusion that Propane and Butane imported by the appellants will not be entitled to the concessional rate, even if, they are considered as forms of Liquefied Petroleum Gases (LPG). The appellant has argued that the amendment to the Notification carried out through amending Notification No.37/2005-Cus dated 02.05.2005, should be considered as retrospective. The wordi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2.2 The refund claims were rejected by the jurisdictional Assistant Commissioner and when appeal was filed before the Commissioner (Appeals), he upheld the rejection of refund claims. Hence the present appeal. 3. Heard Shri Avra Majumdar, ld. Advocate on behalf of the appellant. Revenue is represented by Shri K. Chowdhury, ld.D.R.. 4. The arguments advanced on behalf of the appellant are summarized below : (i) The ld. Advocate submitted that the dispute covers importation of goods viz. Propane as well as Butane. The imported goods were intended for supply to household domestic customers at subsidized prices under the Public Distribution System. (ii) He submitted that the term Liquefied Petroleum Gas essential covers a mixture of propane as well as butane in various proportions along with other gases. The intention of the Government was to extend concessional rate of duty to LPG imported for supply to household domestic customers. The amending notification dated 18.05.2004 mentioned only sub-heading 27111900, which is a residuary entry. Realizing that LPG also includes propane and butane, which are classifiable under 27 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Customs Act, 1962. He specifically pointed out that there is nothing on record to support the claim of the appellant that Customs duty was paid under protest. As such, the refund claims filed on 19.08.2005 in respect of only following 5 Bills of Entry have been filed in time : Sl. No. B/E No. B/E Date 1. 230378 27.04.2005 2. 228450 11.04.2005 3. 226600 24.03.2005 4. 225622 16.03.2005 5. 222992 23.02.2005 (ii) The ld.D.R. for the Revenue, submitted that the benefit of exemption Notification is to be granted strictly in terms of wording of the Notification. He relied on the decision of the Hon ble Supreme Court in the case of Commr. of Customs (Import), Mumbai Vs. Dilip Kumar Company r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... istinguishable. (vi) Finally, he submitted that the appeal may be rejected. 6. Heard both sides and perused the appeal records. 7. The dispute is regarding the rejection of refund claims made by the appellant in respect of 15 Bills of Entry, the details of the 15 Bills of Entry are given below for ready reference : Sl. No. B/E No. B/E Date Date of Payment of duty 1. 212722 29.11.2004 02.12.2004 2. 214923 15.12.2004 17.12.2004 3. 214927 15.12.2004 17.12.2004 4. 218695 17.01.2005 19.01.2005 5. 218696 17.01.2005 19.01.2005 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id under protest . None of the document such as Bills of Entry whose copies are attached with the Appeal Paper Books, indicates as paid under protest . The appellant has also not submitted any other documentary evidence to support their claims. As such, we are of the view that the refund claims in respect of 10 Bills of Entry have been rightly rejected by the lower authorities as time barred. We find no reason to interfere with such finding. 10. Next we discuss the merit of the dispute. The dispute covers the period 18.08.2004 to till 01.05.2005. The relevant Notification No.21/2002-Cus dated 01.03.2002 has prescribed concessional rate of duty for Liquefied Petroleum Gases (LPG), the parent Notification as found underwent amendment vide Notification No.82/04-Cus dated 18.08.2004 prescribed 5% rate of duty for Liquefied Petroleum Gases (LPG) falling under sub-heading 27111900. It was further amended by Notification No.11/2005-Cus dated 01.03.2005 prescribing nil rate of duty, when the goods are imported for supply to household domestic customers. Further amendment carried out vide Notification 37/05Cus dated 02.05.2005 extended the nil rate of duty, but included ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e rejected the refund claims by taking a view that concessional rate of duty will be applicable only to Liquefied Petroleum Gases (LPG) classifiable under 27111900. Since the Notification during the period of dispute did not specify other two sub-headings, the refund claims were rejected. 12. W.E.F.02.05.2005, there is no dispute since all the three subheadings have found place in the Notification. Therefore, the question before this Bench is whether concessional rate of duty can be extended for Propane and Butane by considering them as Liquefied Petroleum Gases (LPG), even when sub-headings were not listed in the Notification. 13. The appellant s case has been built up on the follower pillars : (i) The term Liquefied Petroleum Gases (LPG) also include Propane and Butane. For such proposition, they have referred to the decision of the Tribunal in the case of AEGIS LOGESTICS Ltd. (supra) in which, the Tribunal has taken such a view in the context of Central Excise Notification No.4/2006-CE dated 01.03.2006. (ii) In the decision of the Tribunal in the case of ELF Gas India Ltd. (supra), the Tribunal took similar conclusion by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ear guideline that both Propane Butane can be considered as form of Liquefied Petroleum Gases (LPG). But since the Notification has specified only Liquefied Petroleum Gases (LPG) falling under 27111900 for the concessional rate, it leads to the conclusion that Propane and Butane imported by the appellants will not be entitled to the concessional rate, even if, they are considered as forms of Liquefied Petroleum Gases (LPG). 16. In this connection, the case law relied upon by the Revenue in the case of LM wind Power Blades (India) Pvt. Ltd. (supra), appears relevant. In the said case, the Tribunal had occasion to consider the entitlement to concessional rate of duty for certain goods under Notification 21/02 ibid. The imported goods were conformed to the description given in the Notification, but were not covered under the classification specified in the Notification. The Tribunal held as follows: 10. From the above exemption notification it is evident that the exemption is extended to the excisable goods of the description specified in table read with concerned list appended and falling within chapter, heading number or sub heading number of the Firs ..... X X X X Extracts X X X X X X X X Extracts X X X X
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