Order Date – 16 March 2023

Parties: M/s. Hindustan Petroleum Corporation Ltd. Vs Commissioner of Central Excise, Mumbai-II

Facts –

• The Appellant, M/s. Hindustan Petroleum Corporation Ltd., is a public sector undertaking engaged in refining of Crude Petroleum products and marketing the finished products like Motor Sprit and High Speed Diesel from its Mahul refinery, Mumbai.
• Certain clearances were made on 12.11.2014 and 02.12.2014 during the course of the day but rates of duties were enhanced on those two dates vide Notification Nos. 22/2014-CE and 24/2014-CE respectively from its previous rate of duty applicable since 17.03.2012 as per Notification No. 12/2012-CE. 
• Appellant’s claim is that such notifications enhancing duties came to the knowledge of the Oil Industry very late in the evening and much after the clearance but to avoid any future complicacy, differential Excise duty basing on calculation at the higher rate as per the amended notifications were paid with a protest note. 
• Subsequently Appellant filed two refund applications seeking refund of differential duty. Both claims were rejected.
• Being aggrieved the appellant had filed an appeal.

Issue –

• Whether the denial of refund is in order?

Order –

• The Tribunal observed that going by sub-Section (5) of Section 5A, Issued for publication and completion of publication in the Gazette of India are pre-conditions before the same is offered for sale. Therefore, uploading in the website of the CBEC cannot alone attach enforceability to those Notifications.
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• The Tribunal relied on the full Bench judgment of the Hon'ble Supreme Court in the case of M/s. G.S. Chatha Rice Mills that came in 2020 which made it categorically clear that Notifications issued under delegated authority would not have retrospective effect, would not attract Section 5(3) or the other provisions of General Clauses Act meant for Central Act or Regulations and would not also reopen the assessment.
• Therefore, by the time order was passed by the Commissioner (Appeals), except on issue of unjust enrichment which Appellant’s claimed to have crossed the bar in its refund application itself by annexing sample copies of the invoices with realisation of tax at the old rate, no illegality or irregularity could be noticeable therein.
• But having regard to the fact that law on the issue has evolved and refined itself through judicial decisions and has become law of the land after the full Bench of the Hon'ble Supreme Court dealt the same exhaustively taking into account all judicial precedent vis-a-vis the provisions of Excise Act and Section 5A being peri materia to Section 14 and Section 25(4) of the Customs Act, the Tribunal modified the order passed by the Commissioner (Appeals), so as to extend the benefits to the Appellant.
• Hence the appeal is allowed.