TMI Blog2009 (4) TMI 159X X X X Extracts X X X X X X X X Extracts X X X X ..... B), - Dated:- 24-4-2009 - S/Shri M. Veeraiyan, Member (T) and P.K. Das, Member (J) REPRESENTED BY : Shri Virender Kumar Chaudhary, DR, for the Appellant. Shri K.K. Anand, Advocate, for the Respondent. [Order per : P.K. Das, Member (J)]. - Revenue filed this appeal against Order-in-appeal No. 23-CE/LKO/2008 dated 29-2-2008 passed by the Commissioner (Appeals), Lucknow, whereby adjudication order was set aside and the appeal filed by the respondent was allowed with consequential relief. 2. The relevant facts of the case, in brief, are that the respondents were engaged in the manufacture of Fertilizers i.e. Ammonia Urea classifiable under Chapter 28 and 31 of Central Excise Tariff Act, 1985. On 12-1-1996 the respondents applied for registration under Rule 192 of the erstwhile Central Excise Rules, 1944 (in short "the said Rules") to the Assistant Commissioner of Central Excise, Sitapur and for permission to procure Naptha, for use in the manufacture of Fertilizers, on payment of concessional rate of duty under notification No. 76/84-C.E. dated 1-3-84, as amended. By order dated 8th July, 1997 the Asst. Commissioner, Central Excise, Lucknow rejected the application ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fund claims before the different jurisdictional excise authorities where duty had been paid on Raw Naptha received from M/s. Bharat Petroleum Corporation Ltd. He, further, submits that on the identical issue the Tribunal in respondents' own case (supra) against Order of Commissioner (Appeals) Guwahati had allowed the refund claim. He, further, submits that in their own case on the identical issue the Ahmedabad Bench of the Tribunal vide order No. A/2510/WZB/Ahd./2007 dated 1-10-2007 [2007 (218) E.L.T. 598 (T)], against Order of Commissioner (Appeals) Rajkot held that refund is not time barred. The matter was remanded to the Commissioner (Appeals) to decide the issue of unjust enrichment on the basis of observation of the Tribunal. He also submits that in the remand proceedings the Commissioner (Appeals), Rajkot, by Order-in-Appeal No. 35/2008 dated 14-8-2008 allowed their appeal and set aside the adjudication order and as per his knowledge Revenue has not filed any appeal against the said order. In this context, the learned Advocate drew the attention of the Bench to the relevant portion of the said order as under :- "It is surprising to note that, why the appellant or their Advo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he date of Order of the Commissioner (Appeals) and, therefore, it is barred by limitation. But, the Tribunal overruled the contention of Revenue as the original claim was filed on 7-12-98, within 6 months from the date of that of Commissioner (Appeals). In the present case, we find that the respondents filed the refund claim within 6 months from the date of the order of the Commissioner (Appeals). It has also been observed by the Tribunal in the said case that the claim is not hit by unjust enrichment, when Fertilizer Industry Coordination Committee issued certificate showing that while fixing price of Fertilizer Urea made from Naptha full duty amount was not taken into consideration. Thus, the decision of the Delhi Bench of respondents' own case is applicable herein. 6. In the present case, the main contention of the learned SDR is that the respondents are the purchaser of the goods and, therefore, relevant date would be the date of purchase. Further, it is contended that duty was paid by manufacturer and not by the respondents and, therefore, payment of duty cannot be treated under protest. It is seen that Section 11B(1) of the Act provides that any person claiming refund of an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o. 75/84. The said request was rejected by the Asst. Commissioner. As such, the appellant was bound to obtain Naphtha on full payment of duty. Further, they filed an appeal against such rejection order before the Commissioner (Appeals). As such, filing of appeal by the appellant has to be treated as protest, especially when there is no separate provision in the law to file protest by the buyer of the good. Challenging the order of the Asstt. Commissioner, before the higher appellate forum is nothing but protest against the action of the adjudicating authority and any duty paid during the intervening period i.e. during the pendency of the appeal before the Commissioner (Appeals) has to be treated as payment of duty under protest. Tribunal in the case of Bayshore Glass Trading Pvt. Ltd. 2002 (148) E.L.T. 1243 (Tri.-Kolkata) has held that filing of an appeal against the assessment order is by itself a protest. Hence, it has to be held in the present case that challenging of order of refusal to issue CT-2 certificate before the Commissioner (Appeals) amounted to protest only. Viewed from another angle, the claim of the appellant for refund of excess duty paid is as a consequence of pas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t be above all a judicial statesman. He does not operate in vacuum. Where the language of the law is clear, then, of course, the judge must give effect to it, but there are many cases where it is possible to decide either way. In the types of cases where a decision, one way or other, will count for the future, will advance or retard, sometimes much, sometimes little, the development of the law in the proper direction depends on the judge who has to leap in the heart of legal darkness." 10. Regarding the principle of unjust enrichment, it is seen from Adjudication Order that the respondent submitted certificate of Fertilizer Industry Corporation Committee and chartered Accountant Certificate to prove that the burden of incidence of duty has not been passed to any other person. We find that the respondents, own case Delhi Bench had given detail finding as under :- "10. Urea fertilizers prices are controlled by the Ministry of Chemicals Fertilizers. While fixing the price Ministry takes into account only the concessional rate of duty on the naphtha. Since the prices are fixed by the Government, the appellant can sell the fertilizer only at the prices fixed by the Government. The ..... X X X X Extracts X X X X X X X X Extracts X X X X
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