TMI Blog2020 (9) TMI 561X X X X Extracts X X X X X X X X Extracts X X X X ..... supply to household domestic customs falling under the same chapter heading 2711.1900. It is the contention of the appellant that after the issuance of first amending notification No. 82/04-Cus dated 18.8.2004, they have represented to the Government that oil marketing company did not import Liquefied Petroleum Gases as such, but commercial butane or propane of mixture of commercial butane and propane. In the present case, in both amending exemption notifications No. 82/04-Cus and 11/05-Cus, concessional rate of duty + Nil rate of duty as the case may be the prescribed to be applicable only to Liquefied Petroleum Gases falling under Chapter 2811.1900. There was no mention of Chapter heading 2711.1300 as declared by the appellant while importing commercial butane (Liquefied Petroleum Gas). Applying the principles of strict interpretation, the exemption notification cannot be made applicable to the clearances of commercial butane (Liquefied Petroleum Gas) during the said period. In the present case, we are concerned with the period prior to 2.5.2005 where under the notifications did not contain all the three chapter sub-headings like Entry No. 75E of Notification 37/2005Cus. da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2005 was issued. Therefore, they claimed that the duty paid on import of commercial butane during the said period amounting to ₹ 11,60,61,990/- is refundable to them. On adjudication, the said refund claim was rejected observing that Notification No. 37/05-Cus dated 2.5.2005 cannot be assumed to have retrospective effect and as a result various representations made. Aggrieved by the said rejection of the refund claim, the appellant filed an appeal before the learned Commissioner (Appeals), who in turn, rejected the appeal. Hence, the present appeal. 3. Learned Advocate Shri M.H. Patil for the appellant has submitted that during the relevant period i.e. Sept, 04 to April, 2005, the appellant had imported commercial butane (Liquefied Petroleum Gas) falling under Chapter Tariff heading 2711.1300. The appellant cleared the said commercial butane (Liquefied Petroleum Gas) on payment of normal customs duty of 10% instead of concessional rate of duty applicable to them under Notification No. 82/04-Cus dated 18.8.2004 and 11/05-Cus dated 1.3.2005. It is his contention that since the concessional rate exemption was available to the said commercial butane (Liquefied Petroleum Gas), ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the aforesaid Notifications. Further, he has submitted that similar dispute was decided in their favour vide Order-in-Original dated 26.09.2006. It is his contention that commercial butane or commercial propane or mixtures of both are known internationally as Liquefied Petroleum Gas. He has further submitted that the entry 75E substituted w.e.f. 2.5.2005 would have retrospective effect and in support he has referred to the judgment of the Hon'ble Supreme Court in the case of (i) Indian Tobacco Association (2005) 7 SCC 396 (ii) Zile Singh (2004) 8 SCC 1 (iii) Ramkanali Colliery of BCCL - (2001) 4 SCC 236. 4. Learned AR for the Revenue has submitted that the present issue relates to admissibility of refund relating to the exemption Notification, which was not claimed at the time of import of goods. It is his contention that M/s HPCL imported butane and propane classifying the same under Customs Tariff Heading 2711.1200 and 2711.1300 respectively. The Bills of Entry were assessed and accordingly duties were paid by the appellant. No appeals have been filed by the appellant against the said assessed Bills of Entry. The exemption subsequently claimed by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the notification No. 37/05-Cus cannot operate retrospectively. The liability incurred to pay duty on imported butane and propane before 2.5.2005 cannot be undone by giving such retrospective effect. 7. Heard both sides and perused the records. 8. The short issue involved for determination in the present appeal is whether the appellants are entitled to refund the customs duty of ₹ 11,60,61,990/- paid during September, 2004 to April, 2005. The undisputed facts are that the appellants had imported commercial butane (Liquefied Petroleum Gases) classifying it under Chapter heading 2711.1300 of Customs Tariff Act, 1975 on payment of applicable Basic Customs Duty (BCD) of 10%. Two amended notifications of the basic notification No. 21/02-Cus dated 1.3.2002 were in force during the period namely, Notification No. 82/04-Cus dated 18.8.2004 and 11/05- Cus dated 1.3.2005. The said notifications are reproduced below:- Kerosene, Motor spirit, High Speed Diesel and Liquefied Petroleum Gases - Effective rate of duty - Amendment to Notification No. 21/2002-Cus. In exercise of the powers conferred by sub-section (1) of section 25 of the Customs Act, 1962 (52 of 1962), the Ce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rketing company alternatively the Notification No. 37/05-Cus dated 2.5.2005 was issued whereby the exemption extended to Liquefied Petroleum Gases was streamlined. For ease of reference, the said notification is reproduced below: - Liquefied Propane and Butane and their mixture imported for supply through PDS and Monofilament long line system for tuna fishing - Effective rate of duty - Amendment to Notification No. 21/2002-Cus. In exercise of the powers conferred by sub-section (1) of section 25 of the Customs Act, 1962 (52 of 1962), the Central Government, on being satisfied that it is necessary in the public interest so to do, hereby makes the following further amendments in the notification of the Government of India in the Ministry of Finance (Department of Revenue) No. 21/2002-Customs, dated the 1st March, 2002 which was published in the Gazette of India, Extraordinary vide number G.S.R.118 (E), dated the 1st March, 2002, namely :- In the said notification, - (A) in the Table, - (i) for S. No. 75E and the entries relating thereto, the following shall be substituted, namely : - (1) (2) (3) (4) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... commercial butane (Liquefied Petroleum Gases). 12. We find force in the Revenue s contention inasmuch as principles governing interpretation notification as has been laid down by the Constitutional Bench of the Hon'ble Supreme Court in the case of Dilip Kumar Co. (supra). Their Lordships analyzing the principles laid down earlier held that exemption notification should be interpreted strictly; the burden to prove applicability would be on the assessee to show that his case comes within the parameter of exemption clause or exemption notification. The relevant para 52 is reproduced as under: - 52. To sum up, we answer the reference holding as under - (1) Exemption notification should be interpreted strictly; the burden of proving applicability would be on the assessee to show that his case comes within the parameters of the exemption clause or exemption notification. (2) When there is ambiguity in exemption notification which is subject to strict interpretation, the benefit of such ambiguity cannot be claimed by the subject/assessee and it must be interpreted in favour of the revenue. (3) The ratio in Sun Export case (supra) is not correct and all the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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