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TMI Blog2023 (10) TMI 1079X X X X Extracts X X X X X X X X Extracts X X X X ..... Notifications were 'gazetted' on 12.11.2014 and 02.12.2014. The Appellant M/s. IOCL have filed refund claims claiming that the Notifications would come into force on the date of publication in Official Gazette in terms of Section 5A (5) of the Central Excise Act, 1944. However, in respect of the above two Notifications, the publication in the Gazette was delayed and in the meantime, the Appellant paid enhanced duties from the date of issue of Notification i.e. 12.11.2014 & 02.12.2014, though they have revised the prices of MS & HSD, giving effect to the enhanced duty w.e.f. 13.11.2014 and 03.12.2014. Accordingly, they have filed refund claims for the excess duty paid for 12.11.2014 & 02.12.2014 at Mathura Refinery. The Ld. Commissi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the records. We find that both the conditions mentioned in Section 5A(5) have to be fulfilled for any notification to come into force. In this case, the second condition was not fulfilled during the relevant period and therefore, the exemption notifications had not come into force. Consequently, the appellants were not required to pay duty at the enhanced rate during the relevant periods and therefore, any excess duty which they paid was refundable. Accordingly, the order of the lower authority sanctioning the refunds was correct and it is incorrectly set aside by the first appellate authority." 10.We also find that the Ld. Commissioner(Appeals) in respect of No.75872 of 2016 relying on the Apex Court's decision in case of Union of I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of publication in the Gazette in terms of Section 5A of the Central Excise Act, 1944 is correct, legal and proper."
4. On an appeal filed by the Revenue against Final order No.75355-75360/2022 dated 14.06.2022 for Appeal No.76508/2018 and 75164/2022, Hon'ble High Court of Calcutta vide Order No.CEXA/1/2023 and CEXA/2/2023 dated 09-02-2023 held that the notification would come into effect only from the date of its publication and the Tribunal rightly allowed the assessee's appeal.
5. In view of the above discussions, the impugned orders cannot be sustained and all therefore set aside. The appeal filed by the Appellant is allowed with consequential benefits, as per law.
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