TMI Blog2004 (5) TMI 164X X X X Extracts X X X X X X X X Extracts X X X X ..... td. (BPCL). Such procurement was under nil/concessional rate of duty in terms of Notification No. 75/84-C.E., dated 1-3-1984 and its successor Notification No. 8/96-C.E., dated 23-7-1996. The appellant had made application on 12-1-1996 for registration under Rule 192 of erstwhile Central Excise Rules, 1944 for the purpose of obtaining Naphtha under concessional rate of duty. On 20-2-1996 the Superintendent of Shahjahanpur was informed about the appellant receiving duty paid Naphtha w.e.f. 20-2-1996 for manufacture of fertilizer. By order dated 8-7-1997 the appellant's application was rejected by the Assistant Commissioner, Sitapur. On 30-10-1998 Commissioner (Appeals), Allahabad allowed the appeal filed by the appellant holding that Naphtha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng to reject the refund on the ground that the application was beyond time limit specified under Section 11B. This was followed by order dated 31-12-2002 passed by the Assistant Commissioner rejecting the refund claim on three grounds :- (i) appellant did not procure naphtha from a manufacturing unit, (ii) refund was hit by unjust enrichment, and (iii) refund has been filed on 17-5-1999 which is beyond the period of six months from 20-10-1998 being the date of order of the Commissioner (Appeals) which has resulted in the present refund claim. Aggrieved by the above order, the appellant filed appeal before the Commissioner (Appeals), Guwahati. Commissioner (Appeals) by order dated 29-9-2003 rejected the claimed fil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he buyer. It is pointed out that even before introduction of Rule 233B Tribunal has taken the view that while considering the cases under Rule 11 of Central Excise Rules, 1944 that if a manufacturer pays duty under protest the period of limitation will not be applicable. It is submitted that the appellant was pursuing its remedy when the department denied its eligibility for concessional rate of duty. Ultimately by order dated 30-10-1998 the Commissioner (Appeals) allowed its claim. The very filing of the appeal by the appellant should be taken as a protest against payment of duty. In the meantime the appellant had no option but to procure naphtha on payment of duty. They have been continuously writing letters to the department on the loss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... try Co-ordination Committee, Department of Fertilizer, Ministry of Chemicals Fertilizers (FICC, for short). The above certificate clearly states that excise duty paid on naphtha used as fuel for manufacturing urea was not admitted while considering the retention price. This would clearly show that the price of urea has been fixed by Ministry of Chemicals Fertilizers without considering the excise duty paid on naphtha. The appellant produced a certificate dated 12-7-2002 issued by the Chartered Accountant. This would also support the case of the appellant that the excise duty burden has not been passed on. The appellant relied on the following decisions wherein it has been held that when the sale price has been fixed by some other author ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ied in contending that it was under the bona fide belief that the application for refund has to be filed before the Assistant Commissioner, Sitapur and therefore, the date of the application, namely, 7-12-1998 should be taken into consideration for the purpose of computing the period of limitation even if the period of limitation prescribed under 11B is applicable in this case. The ratio of the decision of this Tribunal in Poulose Matthen v. Collector of Central Excise - 1989 (43) E.L.T. 424 (T) would support the appellant. The view taken by the Tribunal on the above issue was affirmed by the Supreme Court in Collector v. Poulose Matthen - 2000 (120) E.L.T. A64 (S.C.). A similar view was taken by the Calcutta Bench of the Tribunal in Co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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