LexM/S. OSWAL CHEMICALS & FERTILIZERS LTD. versus COMMISSIONER OF CENTRAL EXCISE, BOLPUR
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[2015] 4 S.C.R. 487 M/S. OSWAL CHEMICALS & FERTILIZERS LTD. A v. COMMISSIONER OF CENTRAL EXCISE, BOLPUR (Civil Appeal No.2807 of 2004) MARCH 30, 2015 [A.K. SIKRI AND R. F. NARIMAN, JJ.] B Central Excise Act, 1944 - s.118 - Application by C purchaser of 'Naphtha' - For refund of duty paid by it to the manufacturer of 'Naphtha' - After obtaining CT-2 certificate - Entitlement of the purchaser for refund - Appellate Tribunal rejected the claim for refund on the grounds that 0 the purchaser lacked locus standi to claim and that the claim was made before wrong authority - On appeal, held: • Though the purchaser had the locus standi to make the claim and the claim was also made before the authority having requisite jurisdiction - But the purchaser is not E entitled to the claim as the same was time-barred - Central Excise Rules, 1944 - r. 192 - Notification No. 75184-CE dated 01.03.1984 - Notification No.8196-CE dated 23.07. 1996. Dismissing the appeal, the Court F HELD: 1. Section 118 of the Central Excise Act which contains the provision for making a claim for refund of duty uses the expression "any person" who is eligible to claim refund of the duty. Though the duty G u/s. 11 B is payable by the manufacturer, a manufacturer would generally pass on the burden of the excise duty to the buyer or it may be some other 487 H 488 SUPREME COURT REPORTS [2015] 4 S.C.R. A person. It is for this reason, a person who is ultimately aggrieved with the payment of the said duty and challenges the order successfully can seek the refund. This becomes apparent from the reading of clause (e) to Explanation (8) appended to s.118 which defines B "relevant date". This indid'dtes that the person can be other than the manufacturer and Explanation (8) caters to such other person. Therefore, the appellant who had paid the excise duty to the manufacturer had the necessary locus standi to file the application claiming C the refund of the duty. [Paras 5, 6, 7 and 8] (491-G; 492- G-H; 493-A, D-F] Mafatlal Industries Ltd. and others v. Union of India and others 1996 (10) Suppl. SCR 585: 1997(5) SCC 536 - 0 followed. 2. The reason given by the CESTAT that the appellant had preferred the application before a wrong authority, is factually incorrect. The purchases were from depot at Rajbandh under the IOCL refinery at E Durgapur and therefore, the Central Excise authorities at Durgapur had the requisite jurisdiction over IOCL Depot located at Rajbandh, as it comes under Durgapur Commissionerate. [Para 8] (494-C,F,G] 3. In terms of Section 118, the application for F refund is to be made within six months. The assessee is claiming refund for the period from 25.09.1996 to 16.10.1996. An application for refund was made on 30.04.1999 which was beyond six months period. The protest as per Rule 2338 refers only to a manufacturer G and therefore, a person like the appellant, who was only a purchaser could not have made any protest in terms of Rule 2338. Therefore, if protest is lodged in one form or the other that should be construed as satisfying the condition stipulated in second proviso to H OSWAL CHEM. & FERT. LTD. v. COMMNR. OF CENTRAL489 EXCISE, BOLPUR Section 118. In the present case, the appeal against A order denying CT-2 certificate was filed only in September, 1997 or thereafter. Even if this appeal is treated as a form of protest, that was much beyond six months period from the date of purchase that is 25.09.1996 to 16.10.1996. Therefore, the so-called B protest would not come to the aid of the appellant. Thus, the application for refund was time-barred and on this ground alone, the appellant will not be entitled to refund of the amount. [Paras 10 and 11] [495-B, C, 496-A-C, G-H, 496-A-C] C Case Law Reference 1996 (10) Suppl. SCR 585 Followed. Para 7 CIVIL APPELLATE JURISDICTION: Civil Appeal No. D 2807 of 2004. From the Judgment and Order dated 20.11.2003 of the Customs, Excise and Service Tax Appellate Tribunal, New Delhi in Appeal No. E/41/2002-C. V. Lakshmikumaran, M. P. Devanath, Vivek Sharma, L. Charanaya, Aditya Bhattacharya, R. Ramachandran, Hemant Bajaj, Ambarish Pandey, Rajesh Kumar, Anandh K., for the Appellant. N. K. Kaul, ASG, Raghavendra M. Sajaj, Silpa Nair, Arijit Prasad, B. Krishna Prasad, for the Respondent. The Judgment of the Court was delivered by E F A. K. SIKRI, J. 1. In the present appeal filed by the G assessee, it is se
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