TaxTMI 
TaxTMI 
2019 (4) TMI 1277
X X X X Extracts X X X X
X X X X Extracts X X X X
....LPG) and under 27111300 for Butane (LPG). The goods were cleared on payment of duty and subsequently, refund claims were filed on 19.08.2005 in respect of 15 Bills of Entry filed for goods imported during the period August, 2004 to April, 2005. In the refund claims, the appellant claimed the benefit of concessional rate of duty/"nil" rate of duty as follows : (i) The benefit of 5% concessional rate of duty was claimed under Sl.No.75D in terms of Notification No.21/2002-Cus dated 01.03.2002 as amended by Notification No. 82/04-Cus dated 18.08.2004 (for the period 18.08.2004 till 28.02.2005) ; (ii) The benefit of "nil" rate of duty was claimed under Sl.No.75E after amendment by Notification No.11/05-Cus dated 01.03.2005 (for the period 01.03.2005 till 01.05.2005). 2.2 The refund claims were rejected by the jurisdictional Assistant Commissioner and when appeal was filed before the Commissioner (Appeals), he upheld the rejection of refund claims. Hence the present appeal. 3. Heard Shri Avra Majumdar, ld. Advocate on behalf of the appellant. Revenue is represented by Shri K. Chowdhury, ld.D.R.. 4. The arguments advanced on behalf of the appellant are summarized below : ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the following case laws : (i) Naturalle Health Products (P) Ltd. Vs. Collector of Central Excise, Hyderabad : (2004) 9 Supreme Court Cases 136 ; (ii) Collector of Customs, Bangalore and Another Vs. Maestro Motors Ltd. & Another : (2005) 9 Supreme Court Cases 412. 5. The ld. D.R. rebutted the arguments of the ld.Advocate for the appellant. He justified the impugned order rejecting the refund claims with the following main grounds : (i) He submitted that the refund claims in respect of 10 Bills of Entry are hit by time bar since they are filed beyond the mandatory period of six months specified under Section 27 of the Customs Act, 1962. He specifically pointed out that there is nothing on record to support the claim of the appellant that Customs duty was paid under protest. As such, the refund claims filed on 19.08.2005 in respect of only following 5 Bills of Entry have been filed in time : Sl. No. B/E No. B/E Date 1. 230378 27.04.2005 2. 228450 11.04.2005 3. 226600 24.03.2005 4. 225622 16.03.2005 5. 222992 23.02.2005 (ii) The ld.D.R. for the Revenue, submitted that the benefit of exemption Notification is to be gr....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ane). But the description was given as Liquefied Petroleum Gases (LPG). The dispute in the present case is different and hence that the above decision is distinguishable. (vi) Finally, he submitted that the appeal may be rejected. 6. Heard both sides and perused the appeal records. 7. The dispute is regarding the rejection of refund claims made by the appellant in respect of 15 Bills of Entry, the details of the 15 Bills of Entry are given below for ready reference : Sl. No. B/E No. B/E Date Date of Payment of duty 1. 212722 29.11.2004 02.12.2004 2. 214923 15.12.2004 17.12.2004 3. 214927 15.12.2004 17.12.2004 4. 218695 17.01.2005 19.01.2005 5. 218696 17.01.2005 19.01.2005 6. 219492 24.01.2005 27.01.2005 7. 222992 23.02.2005 24.02.2005 8. 225622 10.03.2005 19.03.2005 9. 226600 24.03.2005 26.03.2005 10. 206401 05.10.2004 11.10.2004 11. 207532 13.10.2004 14.10.2004 12. 208289 20.10.2004 25.10.2004 13. 208299 20.10.2004 26.10.2004 14. 228450 11.04.2005 16.04.2005 15. 230378 27.04.2005 29.....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... below in the form of a Table : Exemption Notification Sl. No. Description of goods Tariff Heading /subheading Rate of duty Remarks 21/2002-Cus dated 01.03.2002 amended by 82/2004-Cus dated 18.08.2004 75D Liquefied Petroleum Gases (LPG) 27111900 5% Insertion of entry in the Parent Notification 11/2005-Cus dated 01.03.2005 75E Liquefied Petroleum Gases (LPG) imported for supply to household domestic consumer 27111900 NIL Insertion of entry in the Parent Notification 37/2005-Cus dated 02.05.2005 75E Liquefied Propane and Butane mixture, Liquefied Propane, Liquefied Butane, and Liquefied Petroleum Gases (LPG) imported for supply to household domestic consumers at subsidized prices under the Public Distribution System (PDS), Kerosene and Domestic LPG Subsidy Scheme, 2002, as notified by the Ministry of Petroleum and Natural Gas vide Notification No.P20029/18/2001-PP. dated 28th January, 2003. 27111200 27111300 27111900 NIL Substitution of entry in the Parent Notification 11. During the period under dispute, the appellant has claimed that they have imported Liquefied Petroleum Gases (LPG) through the above Bills ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....y Notification dated 02.05.2005 is to be considered as applicable retrospectively right from 18.08.2004. 14. We have carefully considered the above two case laws cited by the appellant. The dispute in the case of AEGIS LOGESTICS LTD. (supra) was with reference to Notification No.04/2006-CE dated 01.03.2006. Entry Sl.No.32E of the Notification extended concessional rate of duty of 8% to Liquefied Petroleum Gases (LPG) falling under sub-headings 27111200, 27111300, 27111900 and other certain cases. The importer imported commercial Propane and classified the same under 27111200. Even though sub-heading was specified in the Notification, the benefit was denied by the Customs by taking the view that the description covered Liquefied Petroleum Gases (LPG) and not Propane. The Tribunal held that Propane is a form of Liquefied Petroleum Gases (LPG) and extended such benefit of concessional rate. 15. In the present case, however, the dispute is different. The Notification No.21/02-Cus dt. 01.03.2002 (as amended), during the period of dispute, has extended the benefit of concessional rate of duty to Liquefied Petroleum Gases (LPG) to specify the sub-heading as 27111900. A plain and sim....
X X X X Extracts X X X X
X X X X Extracts X X X X
....en though the goods are covered by description, since the sub-headings of the imported goods do not find mention in the Notification. 17. The Revenue has also relied upon on the decision of the Constitutional Bench of the Hon'ble Supreme Court in the case of Dilip Kumar & Company (supra), the Apex Court laid down the following ratio with reference to extending the benefit of exemption Notification. Para 52 of the said judgement is reproduced below : "52. To sum up, we answer the reference holding as under - (1) Exemption notification should be interpreted strictly; the burden of proving applicability would be on the assessee to show that his case comes within the parameters of the exemption clause or exemption notification. (2) When there is ambiguity in exemption notification which is subject to strict interpretation, the benefit of such ambiguity cannot be claimed by the subject/assessee and it must be interpreted in favour of the revenue." When the above ratio is applied to the facts of the present case, it leads to the conclusion that by strict interpretation of the Sl.No. of the Notification, the appellant cannot be considered as satisfying the parameters ....