Case: SOUTH EASTERN COALFIELDS LTD Vs. COMMR.OF CEN.EXC.KOLKATA-IV

3. With the consent of the parties, we are dealing with the facts of Civil Appeal No. 7625 of 2005 as all other are analogous on facts and law.4. The appellant is a Public Sector Undertaking engaged in coal mining. The price of coal is fixed by the Coal Ministry and the appellants sell the goods on the price fixed by the Ministry and no central excise duty is payable on coal. M/s. Fenner (India) Ltd.(manufacturer) cleared their finished goods viz. feneplsat PVC impregnated conveyor beltings classifying the same under sub-heading 3920.12 on the Central Excise Tariff Act, 1985 as suggested by the department and paid the duty under protest. The dispute with regard to classification of feneplast PVC impregnated conveyor beltings came to this Court and finally decided vide judgment dated 28 th March, 1995(M/s. Fenner (India) Ltd. Vs. Collector of Central Excise, Madurai reported in 1995 (Suppl.) 2 SCC 567)  holding that the conveyor beltings would be classifiable under sub-heading 3922.90 for the period from December 1986 to February 1987 and under sub- heading no. 3926.90 for the period from 10 th February 1987 to June, 1987 and also for the later period. Indisputedly, M/s. Fenner (India) Ltd. pending classification deposited central excise duty under protest and had never applied for its refund after the classification dispute was finally decided by this Court of which a reference has been made.5. The appellant herein is the buyer of conveyor beltings from M/s. Fenner (India) Ltd. filed application for claim of refund on 20 th December, 1996 for the period 20 th July 1988 to 15 th January 1994 on the premise that the payment was made towards central excise duty by the manufacturer(M/s. Fenner(India) Pvt. Limited, Madurai) under protest due to pending classification of PVC impregnated conveyor beltings dispute in the Court of law and after issue of classification has been settled by this Court in favour of the manufacturer M/s. Fenner (India) Ltd. by judgment dated 28 th March, 1995, the central excise duty collected should be refunded by the excise department and there is no bar in claiming of refund in terms of the amendment made under Section 11B of the Act and limitation of six months shall not apply where duty has been paid under protest.6. In furtherance of the application, show cause notice dated 17 th February, 1997 was served by the Department holding that since the appellant did not pay any duty and, therefore, is precluded from making any application under Section 11B of the Act and after affording opportunity of hearing order in original came to be passed by the Authority dated 4 th August, 1997 rejecting the refund application filed by the appellant on the ground of limitation and also on unjust enrichment. The appeal preferred by the appellant against order dated 4 th August, 1997 before the Appellate Authority, Chennai came to be rejected on the ground of limitation under Order dated 18 th January, 1999 and confirmed by the Appellate Tribunal under order impugned dated 8 th August, 2005 placing reliance on the judgment of this Court in Commissioner of Central Excise, Mumbai-II Vs. Allied Photographics India Ltd. 2004(4) SCC 34. The subject matter of challenge is in appeal before us.

Reasoning: 11. It is not disputed that the excise duty was paid by the manufacturer(M/s. Fenner (India) Ltd.) under protest to the department and the dispute with regard to the classification of the product finally came to be decided by this Court in M/s. Fenner India?s case(supra) and the manufacturer M/s. Fenner (India) Ltd. never moved any application for refund of the excise duty at any given point of time. The appellant herein is the buyer and purchased conveyor beltings from the manufacturer M/s. Fenner (India) Ltd. during the period 20 th July, 1988 to 15 th January, 1994 indicated in Civil Appeal No. 7625 of 2005. The period for which the refund of excise duty has been claimed differs but in all the cases, applications have been filed by the appellant(buyer) much after the period of limitation which was six months from the date of purchase of goods at the time of filing of the application to claim refund under Section 11B of the Act.It may be appropriate to notice that the view earlier expressed by the two-Judge Bench of this Court in National Winder Vs. Commissioner of Central Excise, Allahabad 2003(11) SCC 361 was held to be per incuriam in Commissioner of Central Excise, Mumbai-II Vs. Allied Photographics India Ltd. case(supra).14. In the instant case, indisputedly the application was filed by the appellant as a buyer of the goods(conveyor belts) from M/s. Fenner (India) Ltd. who paid the duty under protest much after a period of limitation(six months) as prescribed under the mandate of law disentitles the claim of refund to the appellant as prayed for in view of the judgment of this Court in Commissoiner of Central Excise, Mumbai-II Vs. Allied Photographics India Ltd. case(supra) holding that the purchaser of the goods was not entitled to claim refund of duty made under protest by the manufacturer without complying the mandate of Section 11B of the Act, 1944.