TMI Blog2023 (3) TMI 798X X X X Extracts X X X X X X X X Extracts X X X X ..... , differential Excise duty basing on calculation at the higher rate as per the amended notifications were paid with a protest note. HELD THAT:- Appellant had admitted therein that it had knowledge about such enhancement on the same day, though it came late in the evening subsequent to the clearance of goods made during the course of day upon rising of invoice with old rate of duties prevailing at the time of clearance. As could be further noticed from the order of the Adjudicating Authority and Commissioner (Appeals), there was no pleading made before them that the Notifications came on the next day of its issue and Appellant itself also came to know about the same through the RTI application reply received in 2019. Even this fact of pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upreme Court dealt the same exhaustively taking into account all judicial precedent vis-a-vis the provisions of Excise Act and Section 5A being peri materia to Section 14 and Section 25(4) of the Customs Act, we thought it expedient, just and proper to modify the order passed by the Commissioner (Appeals), so as to extend the benefits to the Appellant. The order passed by the Commissioner of Central Excise (Appeals), Mumbai-II vide Order-in- Appeal No. PK/18 19/M-II/2016 dated 08.09.2016 observing that the Notification would be effective from the date of its issue is modified to the extent that the said Notifications would be effective from the date and time of its publication in its Official Gazette which were published on 13.11.2014 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch after the clearance but to avoid any future complicacy, differential Excise duty basing on calculation at the higher rate as per the amended notifications were paid with a protest note. Subsequently Appellant filed two refund applications seeking refund of differential duty of Rs.2,96,83,632/- paid in response to Notification No. 22/2014-CE and Rs.1,08,08,167/- paid in response to the other Notification No. 24/2014-CE claiming the same as not payable by it. Both claims were rejected through adjudication orders after service of required show-cause notices against which Appellant preferred appeal before the Commissioner (Appeals), who through a common Order-in-Appeal, confirmed such order of rejection of refund, which is assailed before t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd in its reply dated 23.09.2019, it was clearly mentioned that Notifications were printed in the Gazette of India only on 13.11.2014 and 03.12.2014 which are on the next date of the clearance of goods on payment of duty at the then prevailing rate, for which the order passed by the Commissioner (Appeals) is unsustainable in law and fact. Additionally, she referred to the full Bench judgment of Hon'ble Supreme Court passed in the case of Union of India Vs. M/s. G.S. Chatha Rice Mills reported in 2020 (374) ELT 289 (S.C.) and made an alternate submission that such Notifications being in the nature of delegated legislation, provision of General Clauses of Act could not be applicable, though the same point was neither argued nor agitated i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (336) ELT 463 (Cal.) that date of issue of publication being effective date, actual publication in Official Gazette and offer for sale of Gazette copy would not come to the rescue of the Appellant to succeed in its appeal. 5. We have heard arguments at length and gone through the case record including written notes/submissions and relied upon judgments. As could be noticed from the refund application itself, Appellant had admitted therein that it had knowledge about such enhancement on the same day, though it came late in the evening subsequent to the clearance of goods made during the course of day upon rising of invoice with old rate of duties prevailing at the time of clearance. As could be further noticed from the order of the Adjud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Government for publication in the Official Gazette; (b) also be published and offered for sale on the date of its issue by the Directorate of Publicity and Public Relations, Customs and Central Excise, New Delhi, under the Central Board of Excise and Customs constituted under the Central Boards of Revenue Act, 1963 (54 of 1963). Moreover, change of law through judicial process has taken place only recently in 2020 in the Ruchi Soya Industry case which had overruled the earlier decision of 2016 passed by the Hon'ble High Court of Calcutta, cited supra and also struck down Section 25(4) of the Customs Act by holding that the same was arbitrary and contrary to other provisions of Customs Act and the full Bench judgment of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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