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TMI Blog2021 (4) TMI 1164X X X X Extracts X X X X X X X X Extracts X X X X ..... ility of the protest lodged by the manufacturer to the refund claim made by the buyer and it simply states that the duty has to be paid under protest, whether it is correct to hold that the refund claim of the buyer is barred by limitation on the ground that the claim was not made within the normal period of limitation despite the fact that the duty for which refund claim was made has been paid under protest by the proper person? ii. When payment of duty under protest, for which, refund claim has been made by the buyer alone is the relevant factor to determine the limitation under Section 11B, whether it is correct to disallow the refund application made by the buyer on the ground that the buyer ought to have paid the duty within six months of the purchase ? and iii. In the facts and circumstances of the case where the Hon'ble Supreme Court in the case of National Winders has rendered the categorical finding that the protest lodged by the manufacturer can be extended to the buyer with regard to determination of the limitation under Section 11B of the Central Excise Act, whether it is correct to apply the decision in the case of Allied Photograhic, in which, only the passing com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Deputy Commissioner of Central Excise, Madurai II Division, Madurai disallowing the claim for refund. Aggrieved by such an order, the assessee preferred an appeal before the Commissioner (Appeals), Madurai, who, by order dated 30.6.2004 in Order-in-Appeal No.123/ 2004, remanded the matter to the Adjudicating Authority for de novo consideration. 8. On remand to the Adjudicating Authority, another show cause notice dated 11.10.2004 came to be issued, to which, the assessee filed a reply dated 29.10.2004 questioning that the second show cause notice was not maintainable apart from making submissions on merits. However, the Adjudicating Authority, by Order-in-Original dated 31.1.2005, disallowed the refund claim in its entirety. Again, aggrieved by the said order dated 31.1.2005, the assessee filed an appeal before the Commissioner of Central Excise (Appeals), Madurai-2, who dismissed it by order dated 20.4.2005 on the ground that the refund claim was time barred. As against that, the assessee filed further appeal to the Tribunal, which dismissed the same by the impugned order dated 03.1.2014 following the earlier order of the Tribunal in the case of M/s.Western Coal Fields Ltd. & ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other similarly placed assessees were dismissed by the Hon'ble Supreme Court in the judgment in the case of M/s.Western Coalfields Ltd. Vs. Commissioner of Central Excise [reported in (2019) 365 ELT 849]. It is also submitted by the learned counsel for the appellant - assessee that as against the judgment of the Hon'ble Supreme Court reported in (2019) 365 ELT 849, the assessee preferred a review application, that the same is yet to be numbered and that either this Court should await the decision in the review application or this Court should permit the appellant to contest the matter on merits. 12. Since the review application filed against the judgment of the Hon'ble Supreme Court reported in (2019) 365 ELT 849 is yet to be numbered and there is nothing on record to show that the review was filed well within the period of limitation, etc., we are not inclined to defer the hearing of the appeal. We have heard the learned counsel appearing for the appellant - assessee in extenso. 13. The endeavour of the learned counsel for the appellant is to distinguish the decision of the Hon'ble Supreme Court in the case of Allied Photographics India Ltd., firstly by pointing out that the qu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cision of nine-Judge Constitution Bench in the case of Mafatlal Industries Ltd. Vs. Union of India [reported in (1997) 89 ELT 247] on the other hand and a two-Judges Bench of the Hon'ble Supreme Court vide order dated 13.11.2003 referred the matter and the question, which was framed, was as to whether a claim for refund after final assessment was governed by Section 11B of the Act. Before the Hon'ble Supreme Court, the Department submitted that there was a difference between provisional assessment under Rule 9B of the Central Excise Rules and payment of duty under protest in terms of Rule 233B of the Central Excise Rules. By referring to the decision of the Hon'ble Supreme Court in the case of Mafatlal Industries Ltd., it was further submitted that under the Second Proviso to Section 11B of the Act, if duty was paid by the manufacturer under protest, the limitation of six months was not applicable and that however, the purchaser of duty paid goods, after finalization of assessment of excise duty payable by the manufacturer, was not entitled to rely upon the said Proviso. It was further argued that in any event, the assessee therein namely M/s.Allied Photographics India Ltd., ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bmitted that the doctrine of unjust enrichment under Section 11B of the Act would not apply to the case on hand. It was also submitted that Section 11B(3) of the Act would have no bearing on the assessee's case when it was not in dispute that the payment was made under protest. Hence, it was contended that Section 11B(3) of the Act would have no application to the facts of that case. 19. After recording the submissions made on either side, the point for determination as framed by the Hon'ble Supreme Court was as to whether the doctrine of unjust enrichment under Section 11B of the Act was applicable to the facts of the said case having regard to the fact that the manufacturer therein paid the differential disputed excise duty under protest when the assessment was finalized in favour of the manufacturer therein in the light of the judgment of the Hon'ble Supreme Court in the case of Union of India Vs. Bombay Tyre International Ltd. [reported in (1983) 14 ELT 1896], which was rendered in the year 1983/84. The Hon'ble Supreme Court, after carefully analyzing the statutory provisions and in particular Section 11B of the Act, the statement of objects and the reasons for enacting the Am ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ayment was similar to payment under rule 9B, the respondent M/s APIL was not required to comply with Section 11B. In the light of the discussion hereinabove, we hold that the respondent was bound to comply with Section 11B. Lastly, in any event, the application dated 11.2.1997 fell in the category of refund claim being made after finalization of assessment of NIIL and, therefore, Section 11B had to be complied with in terms of para 104 of the above judgment in the case of Mafatlal Industries Ltd. (supra). For above stated reasons, since there was failure to comply with Section 11B, the respondent was not entitled to refund. 13. The point which still remains to be decided is whether the respondent herein was entitled to refund without complying with Section 11B of the Act on the ground that it had stepped into the shoes of NIIL (manufacturer) which had paid the duty under protest. It was argued on behalf of the respondent that NIIL had paid the excise duty under protest pending final assessment, which was ultimately decided in favour of NIIL and since NIIL had sold the product to the respondent herein, the respondent was entitled to the benefit of the second proviso to Section 11B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 made under protest by the manufacturer without complying with Section 11B of the Act. 14. As stated above, para 104 of the judgment in the case Mafatlal Industries Ltd. (supra) states that if refund arises upon finalization of provisional assessment, Section 11B will not apply. Para 104 of the said judgment does not deal with payment under protest. In the light of what is stated herein, we may now consider the judgment of this Court in the case Sinkhai Synthetics & Chemicals Pvt. Ltd. (supra). In that matter, the assessee was a manufacturer. The assessee claimed exemption which was denied by the Department. The assessee went in appeal to CEGAT. Pending appeal, assessee paid excise duty under protest. The assessee succeeded before the CEGAT and claimed refund on 17.1.1991. Refund was denied by the Department. Therefore, it was a case of payment of duty under protest. However, in the said decision, this Court applied para 104 of the judgment of the Constitution Bench in the case of Mafatlal Industries ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acturer under protest then limitation of six months will not apply to a claim of refund by a purchaser. For the reasons given hereinabove, we hold that the said judgment is per incuriam. At this stage, it is important to note that the Division Bench judgment [Hon. S.N. Variava & B.P. Singh, JJ.] in the case of National Winder (supra) was delivered on 11.3.2003. However, on 13.11.2003, the Division Bench [Hon. S.N. Variava & H.K. Sema, JJ.], has referred the matter as stated above to the larger bench in the light of conflict which the Division Bench noticed between the earlier judgments of this Court on one hand and paragraph 104 of the judgment of the Constitution Bench of nine- Judges in the case of Mafatlal Industries Ltd. (supra). Hence, by this judgment, we have clarified the position in law." 20. A combined reading of the above paragraphs would clearly show that the Hon'ble Supreme Court considered the issue in its entirety and also with regard to cases where duty had been paid under protest. 21. The decision of the Hon'ble Supreme Court in the case of Sinkhai Synthetics and Chemicals Pvt. Ltd., was held to be per incuriam, as it was based on a concession made by the learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ia Ltd., and rejected the case of the assessee. The Hon'ble Supreme Court also took note of the argument of the assessee by placing reliance on the decision of the Hon'ble Supreme Court in the case of National Winder and pointed out that the decision in the case of National Winder had been held to be per incuriam. The relevant portions in the decision of the Hon'ble Supreme Court in the case of Western Coalfields Ltd., read thus : "12. Secton 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)(B)(e) of the Act. The scheme of Section 11B makes a d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this Court in Commissoiner of Central Excise, MumbaiII Vs. Allied Photographics India Ltd. case(supra) holding that the purchaser of the goods was not entitled to claim refund of duty made under protest by the manufacturer without complying the mandate of Section 11B of the Act, 1944." 23. The above decision and more particularly the conclusion in paragraph 14 is a clear answer to the assessee's case. Indisputably, the application was filed by the appellant as a buyer of the goods from the supplier namely the said M/s.Fenner India Ltd., which paid duty under protest after the period of limitation prescribed in law and therefore, this would dis-entitle the claim of refund to the assessee as prayed for by applying the law laid down by the Hon'ble Supreme Court in the case of Allied Photographics India Ltd., wherein it was held that the purchaser of the goods was not entitled to a claim for refund of duty made under protest by the manufacturer without complying with the mandate of Section 11B of the Act. 24. For all the above reasons, the appellant - assessee has not made out any case to interfere with the impugned order passed by the Tribunal. 25. Accordingly, the above civil mis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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