Custom, Excise & Service Tax Tribunal
Ms Indian Oil Corporation Ltd vs Sonepat(Delhi-Iii) on 25 April, 2024
CUSTOMS, EXCISE AND SERVICE TAX APPELLATE
TRIBUNAL
CHANDIGARH
REGIONAL BENCH - COURT NO. I
Excise Appeal No. 60616 of 2017
[Arising out of Order-in-Appeal No. 87/CL/DLH/2017 dated 24.04.2017
passed by the Commissioner (Appeals), Central Excise, Delhi III]
M/s Indian Oil Corporation Ltd ......Appellant
Panipat Marketing Complex, Baholi, Haryana-132103
VERSUS
Commissioner of Central Excise, Sonepat ......Respondent
(Delhi-III) 1st & 2nd Floor, 51, Milestone Building, NH-I, Murthal, Sonepat, Haryana 131027 APPEARANCE:
Present for the Appellant: Ms. Shreya Dahiya, Advocate Present for the Respondent: Shri Siddharth Jaiswal and Shri Aneesh Dewan, Authorized Representatives CORAM: HON'BLE MR. S. S. GARG, MEMBER (JUDICIAL) HON'BLE MR. P. ANJANI KUMAR, MEMBER (TECHNICAL) FINAL ORDER NO. 60183/2024 DATE OF HEARING: 12.04.2024 DATE OF DECISION: 25.04 .2024 PER S. S. GARG The present appeal is directed against the impugned order dated 24.04.2017 passed by the Commissioner (Appeals) whereby the Commissioner (Appeals) has rejected the appeal of the appellant and upheld the Order-in-Original.
2. Briefly the facts of the present case are that the appellants are manufacturers of various petroleum products including Motor 2 E/60616/2017 Spirit (MS), High Speed Diesel (HSD) and Aviation Turbine Fuel (ATF). By Notification No. 22/ 2014 dated 12.11.2014 and Notification No. 24/2014 dated 02.12.2014 the excise duty applicable on MSD HSD and ATF were enhanced as under:
(Notification No. 22/2014) Product Duty (Old) Duty (New) HSD (Unbranded) Rs. 1.46/L Rs. 2.96/L MS (Branded) Rs. 2.35/L Rs. 3.85/L (Notification No. 24/2014) Product Duty (Old) Duty (New) HSD (Unbranded) Rs. 2.96/L Rs. 3.96/L Ms (Branded) Rs. 3.85/L Rs. 6.1/L Ms (Unbranded) Rs. 2.7/L Rs. 4.95/L As the clearances were already effected on the date of the Notifications i.e. 12.11.2014 and 02.12.2014, the invoices issued to the customers was on the existing lower rate of duty. At the time of payment of duty in the subsequent month, the appellant deposited the Excise duty to the department at the enhanced rate of duty under protest.
3. Thereafter, the appellant filed a claim dated 23.10.2015 for refund of the excess duty paid amounting to Rs. 12,48,50,953, as the Notification was effective only prospectively and no duty was liable to be paid on the date of notification i.e., on 3 E/60616/2017 22.11.2014 or 02.12.2014. The Appellant also placed on record an order of the Assistant Commissioner dated 08.10.2015 whereby for the prior period refund has been sanctioned to the appellant on identical facts. The said order of refund passed by the Assistant Commissioner was upheld up to the High Court of Calcutta vide its order dated 09.02.2023.
4. The adjudicating authority without considering the submissions made by the Appellant and denied the refund. Aggrieved by the said order, the appellant filed an appeal before the Commissioner (Appeals) who upheld the decisions of the adjudicating authority. Hence, the present appeal.
5. Heard both the parties and perused the material on record.
6. Ld. Counsel appearing for the appellant submits that the impugned order is not sustainable in law as the same has been passed without properly appreciating the facts and the law and the binding judicial precedents on identical issue. She further submits that as per Section 5A of the Central Excise Act, 1944 Act, a notification comes into effect when:
a. it is published in the official gazette b. it is offered for sale to the public
7. She further submits that only when both these conditions are fulfilled, the Notification will be said to come in effect. Whereas, in the present case both the Notification dated 12.11.2014 and 02.12.2014 were not issued for publication in the official gazette not offered for sale on the said date.
4 E/60616/2017 Therefore, the Appellant is not liable to pay duty as per the Notifications on 12.11.2014 and 02.12.2014.
8. She further submits that on identical facts in the appellant's own case the Ahmedabad Bench of the CESTAT has considered both these Notifications and granted refund vide its order dated 26.10.2021. She further submits that this issue is no more res integra and has been considered by various Benches of Tribunal and the same has been relied upon by the Ahmedabad Bench in the appellant's own case vide final no. A/12461/2021 dated 26.10.2021. She further relied upon the following judgments :
2017 (353) ELT 12 (Guj.) M.D. Overseas Ltd. Vs. UOI 2017 (356) ELT A136 (SC) 2015 (321) ELT 192 (S.C.) UOI VS. PARAM INDUSTRIES LTD.
2002 (150) ELT 3 (Kar.) PARAM INDS. LTD. VS. UOI 2020 (373) ELT 113 (T) RUCHI SOYA INDS. LTD. Vs. CC
9. On the other hand, Ld. AR reiterated the findings of the impugned order.
10. We have considered the submissions of both the parties and perused the material on record as well as the decisions relied upon by the Ld. Counsel for the appellant. We find that identical issue in the appellant's own case was considered by the Ahmedabad Bench of the CESTAT. After considering the various 5 E/60616/2017 decisions of the High Court and the Supreme Court the issue was decided in favour of the appellant by holding as under:
"04. We have carefully considered the submissions made by both the sides and perused the records. The issue involved in the present case are:
a) Whether any exemption notification will come into force from the date of its issue or from the date of its publication in the official gazette as per Section 5A of the Central Excise Act, 1944.
b) Whether the principle of unjust enrichment will apply when the sale price remained unchanged even after increase in the rate of duty and the price of the commodity was controlled by the government.
4.1 As regard the issue (a), we find that the relevant provision is made under Sub-section (5) of Section 5A of Central Excise Act, 1944 which is reproduced below:
"[(5) Every notification issued under sub-section (1) [or sub- section (2A)] shall,-
(a) unless otherwise provided, come into force on the date of its issue by the Central Government for publication in the Official Gazette;
(b) also be published and offered for sale on the date of its issue by the Directorate of Publicity and Public Relations, Customs and Central Excise, New Delhi, under the Central Board of Excise and Customs constituted under the Central Boards of Revenue Act, 1963 (54 of 1963)."
From the above provision it is absolutely clear that any notification issued under Sub-section (1) or Sub-section (2A) come into force on a date when it is published and offered for sale on the date of its issue.
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11. We also find that the appellant has placed on record the order dated 08.10.2015 passed by the Assistant Commissioner whereby the Assistant Commissioner has granted the refund of excess excise duty paid by the appellant by holding as under:
"In the light of the above facts and circumstances, find that M/s Indian oil Corporation Limited, Bongaigaon Refinery, P.O.Dhaligaon, Dist. Chirang, (Assam) is eligible for refund of differential Central Excise duty alongwith corresponding Education Cess and Secondary & Higher Education Cess amounting to Rs. 1,48,07,075/- (Rupees One Crore Forty Eight Lakhs Seven Thousand Seventy Five) only paid on excise invoice issued on 12.11.2014 and 02.12.2014 for clearance of HSD and MS from their factory."
12. The said refund order was challenged by the Department before the Commissioner (Appeals) and the Commissioner (Appeals) dismissed the appeal of the department vide its order dated 28.03.2016. Further, the Department challenged the order of Ld. Commissioner (Appeals) before the CESTAT, Kolkata and the Tribunal vide its order dated 14.06.2022 dismissed the appeal of the Department by observing as under in para 11:
"11. In view of the above, we find that the Appellant's argument that the applicability of Notifications would be from the date of publication in the Gazette in terms of Section 5A of the Central Excise Act, 1944 is correct, legal and proper. Therefore, the impugned orders in respect of Excise Appeal Nos.75944, 75945 of 2016, Excise Appeal No.76508 of 2018 and Excise Appeal No.75164 of 2022, cannot be sustained and therefore are set aside. Accordingly, Excise Appeal Nos. 75872 and 75954 of 2016 are hereby dismissed."
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13. Not satisfied with the decision of the CESTAT, Kolkata, the Department further challenged the order of the Tribunal before the Hon'ble High Court of Calcutta and the appeal filed by the Department was also dismissed by the High Court vide its order dated 09.02.2023, relevant extract of the High Court order is reproduced below:
"The short issue which falls for consideration is the date on which the notifications wrist were relied upon by the assessee came into force. We need not labour much to find an answer to this issue as the Ahmedabad Bench of the Tribunal has considerest elaborately this issue in the assessee's own case pertaining to the very same two notifications and has come to a conclusive finding that the notifications cannot be applied to the case of the assesse and they are entitled for refund. The relevant paragraph is quoted hereinbelow:-
"From the above search, it is clear that the notification No.22/2014 was published on 22nd November, 2014 and notification no. 24/2014 was published on 11th December, 2014 therefore, both the notifications will be effective from the date of Its publication i.e. 22nd November, 2014 and 11th December, 2014 respectively therefore, the contention of the lower authority that the notification will be effective from the date of its issue of notification is absolutely incorrect. Therefore, refund on this ground is admissible to the appellant."
The above factual position is not being disputed by the revenue more so when the order passed by the Ahmedabad Tribunal has been given effect to and refund has been ordered. That apart in the cases on hand the revenue has accepted the impugned order and by orders dated 26.10.22 has granted refund. Inasmuch as the fact that the notifications were published only on 22.11.2014 and 11.12.2014, the same would be the date on which the notifications came into force and, therefore, the finding recorded by the adjudicating authority and the first Appellate Authority that the notifications came into effect on 11.12.2013 is factually incorrect. Furthermore, the respondent/assessee has made a 8 E/60616/2017 search in the official website of the Department of Publication, Ministry of Housing and Urban Affairs, Government of India from which it is seen that notification No. 22 of 2014 was issued on 12.11.2014 but was published in the Gazette only on 22.11.2014. Likewise, Notification No. 24 of 2014 was issued on 2.12.2014 and published on 11.12.2014. Thus the notifications would come into effect only from the date of such publication and the Learned Tribunal rightly allowed the assessee's appeal. That apart the appellant/revenue having implemented the order passed by the learned Tribunal and granted refund by an order dated 26.10.2022 which precluded from pursuing this appeal. For the above reasons the appeals are dismissed and the substantial questions of law are answered against the revenue".
14. Further, we find that in the case of Ruchi Soya Industries Ltd. Versus Commissioner Of Customs, Kandla - 2020 (373) E.L.T. 113 (Tri. - Ahmd.) the Tribunal has held in para 5 and 6 as under :
"5. On careful reading of the said judgment, we find that the said judgment is not in reference of amended Section 25(4)(a)(b) of Customs Act, 1962. We observe that despite pointing out this legal position to both the Lower Authorities they have brushed aside even the judgment of Karnataka High Court in the case of M/s. Param Industries Ltd. which has considered the judgment of Ganesh Das Bhojraj, therefore, both the Lower Authorities have not followed the judicial discipline. The decision of Karnataka High Court was subsequently upheld by the Hon'ble Supreme Court as cited (supra). On the identical issue the jurisdictional Gujarat High Court in the case of M/s. M.D. Overseas Ltd. also taken the same view as was taken by the Karnataka High Court and Supreme Court in the case of M/s. Param Industries Ltd. This judgment of M/s. M.D. Overseas Ltd. was also upheld by the Hon'ble Supreme Court.
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6. In view of the above discussed facts coupled with the settled legal position in the judgment of M/s. Param Industries Ltd. (supra) and M/s. M.D. Overseas Ltd. (supra), the impugned order is not sustainable hence, the same is set aside, appeal is allowed.
15. As the issue is no more res integra as held in the judgments cited (Supra). By following the ratio of the said decisions, we are of the considered view, the impugned order is not sustainable in law, therefore, the same is set aside by allowing the appeal of the appellant with consequential relief, if any, as per law.
(Order pronounced in the open court on 25.04.2024.) (S. S. GARG) MEMBER (JUDICIAL) (P. ANJANI KUMAR) MEMBER (TECHNICAL) Kailash