NATIONAL WINDER Vs. COMMISSIONER OF C EX ALLAHABAD

JUDGEMENT

(1.) These appeals are against a decision of the Larger Bench of the Customs, Excise and gold (Control) Appellate Tribunal (CEGAT). The majority have held that a purchaser who claims refund under Section 11b must do so within six months of the date of purchase of the goods. It is held that the purchaser is not entitled to the benefit of the proviso to that Section even if the manufacturer has paid the duty under protest.

(2.) To consider the question, it is necessary to set out herein the relevant portion of section 11b. The relevant portion of Section 11b reads as under :-

(3.) Section 11b was amended in 1991. After the amendment by virtue of sub-clause (a) in Explanation "b" of Section 11b even a purchaser can claim refund. A manufacturer has to file his claim for refund within six months from the relevant date. The purchaser also has to file a claim for refund within six months from the date of purchase of the goods. The wordings of the proviso are relevant viz. , "provided further that the period of limitation of six months shall not apply where any duty has been paid under protest". Significantly, the proviso does not state that the period of limitation of six months will not apply where no protest has been lodged by the purchaser. Duty will always be paid by the manufacturer. Under Rule 233- b, at the time the manufacturer pays duty, he has to lodge a protest. A receipt or endorsement of "duty paid under protest" is issued to the manufacturer. There is no Rule or provision by which protest can be lodged by a purchaser. The wording of the proviso shows that the Legislature has worded the proviso in a manner which covers all claims for refund. The wide language of the proviso shows that it covers not just claims for refund by the manufacturer but also claims for refund by the purchaser. Thus, if duty is paid by a manufacturer under protest, then the limitation of six months will not apply even to a claim for refund by the purchaser.