TaxTMI 
TaxTMI 
2020 (9) TMI 561
X X X X Extracts X X X X
X X X X Extracts X X X X
....refund claim on 18.4.2005 seeking refund of Rs. 11,60,61,990/- paid during the aforesaid period. Since the refund claim was not maintainable, the appellant was issued with a letter on 11.10.2005 directing them to file written reply and clarification on the issue. In the written submissions dated 21.10.2005, the appellant submitted that the basic customs duty on the Liquefied Petroleum Gas under the Customs Tariff Heading 2711.19 was reduced to Nil vide Notification No. 11/05- Cus dated 1.3.2005. Since the oil companies are not importing Liquefied Petroleum Gas per se and instead such imports are only in the form of commercial butane (Customs Tariff Heading 2711.13) or propane (Customs Tariff Heading 2711.12), they made representation to the Ministry of Petroleum and as a consequence Notification No. 35/05-Cus dated 2.5.2005 was issued. Therefore, they claimed that the duty paid on import of commercial butane during the said period amounting to Rs. 11,60,61,990/- is refundable to them. On adjudication, the said refund claim was rejected observing that Notification No. 37/05-Cus dated 2.5.2005 cannot be assumed to have retrospective effect and as a result various representations made....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s of the Liquefied Petroleum Gases only. The said judgment was followed by this Tribunal subsequently in the case of Reliance Industries Ltd. Vs. Commissioner of Customs - 2018-TIOL-2706-CESTAT-Mum, wherein also it is held that commercial propane classified under Tariff Item 2711.1200 would be eligible for concessional rate and Department's claim that exemption was available only to the goods 'Liquefied Petroleum Gases', which is a mixture of hydrocarbon gases i.e. propane, propylene, butane, butylenes and isobutene was not accepted. Further, he has submitted that in the Order-in-Appeal, it has been mentioned that the imported product is a mixture of butane and propane (98% butane and 2% propane), therefore, the same be considered as classifiable under Tariff Item 2711.1900 and eligible for exemption under the aforesaid Notifications. Further, he has submitted that similar dispute was decided in their favour vide Order-in-Original dated 26.09.2006. It is his contention that commercial butane or commercial propane or mixtures of both are known internationally as Liquefied Petroleum Gas. He has further submitted that the entry 75E substituted w.e.f. 2.5.2005 would have retrospective ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e Revenue further submitted that after insertion of sub-section (2A) and (4) in Section 25, cannot be given retrospective effect unless such a specific explanation is inserted in the notification. Referring to the Larger Bench's decision of CESTAT in Arvind Products Ltd. - 2014 (310) ELT 515 (Tri-LB), the notification cannot be have retrospective effect unless it is specifically mentioned in the said notification. Further, referring to clause (b) and (c) of Section 159A of the Customs Act, 1962, he has submitted that amendment to a notification shall not affect the previous operation of the un7 amended notification or anything duly done or suffered thereunder and that such amendment shall not affect any obligation or liability incurred under the un-amended notification. Therefore, the notification No. 37/05-Cus cannot operate retrospectively. The liability incurred to pay duty on imported butane and propane before 2.5.2005 cannot be undone by giving such retrospective effect. 7. Heard both sides and perused the records. 8. The short issue involved for determination in the present appeal is whether the appellants are entitled to refund the customs duty of Rs. 11,60,61,990/- paid d....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ing company did not import Liquefied Petroleum Gases as such, but commercial butane or propane of mixture of commercial butane and propane. It is their argument that taking into note the objections of the oil marketing company alternatively the Notification No. 37/05-Cus dated 2.5.2005 was issued whereby the exemption extended to Liquefied Petroleum Gases was streamlined. For ease of reference, the said notification is reproduced below: - "Liquefied Propane and Butane and their mixture imported for supply through PDS and Monofilament long line system for tuna fishing - Effective rate of duty - Amendment to Notification No. 21/2002-Cus. In exercise of the powers conferred by sub-section (1) of section 25 of the Customs Act, 1962 (52 of 1962), the Central Government, on being satisfied that it is necessary in the public interest so to do, hereby makes the following further amendments in the notification of the Government of India in the Ministry of Finance (Department of Revenue) No. 21/2002-Customs, dated the 1st March, 2002 which was published in the Gazette of India, Extraordinary vide number G.S.R.118 (E), dated the 1st March, 2002, namely :- In the said notification, - ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....to commercial butane (Liquefied Petroleum Gases). 12. We find force in the Revenue's contention inasmuch as principles governing interpretation notification as has been laid down by the Constitutional Bench of the Hon'ble Supreme Court in the case of Dilip Kumar & Co. (supra). Their Lordships analyzing the principles laid down earlier held that exemption notification should be interpreted strictly; the burden to prove applicability would be on the assessee to show that his case comes within the parameter of exemption clause or exemption notification. The relevant para 52 is reproduced as under: - "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. (3) The ratio in Sun Export case (supra) is not correct and all the decisions ....