1. The brief facts of the case are that the government revised upwardly the rates of excise duty of Motor Spirit (Petrol) and High Speed Diesel
(HSD) on the two occasions by following the two notifications:
(a) Notification No. 22/2014-CE dated 12.11.2014
(b) Notification No.24/2014-CE dated 02.12.2014.
1.1 Due to late notice of aforesaid two notifications for enhancement of duty rates, the appellant had cleared and invoiced removal of particular dates
i.e.12.11.2014 & 02.12.2014 respectively at lower rates of duty. However, when the duty became payable by the appellant on the 6th of next month,
they paid the duty at enhanced rate under protest. Thereafter, the appellant filed refund claim on the ground that the differential duty on account of
enhanced rate was not payable by them due to late receipt of the notifications which should come into force from the date of its publication and
offered for sale. The learned Commissioner (Appeals) rejected the refund claim on merits and on the bar of unjust enrichment. On merit he held that
the date of sale of notification by the Directorate of Publicity would not be relevant for determining effective date of notification. Being aggrieved by
the Order-In-Original, the appellant filed appeal before the learned Commissioner (Appeals) who also rejected the appeal by holding that in the era of
information technology, the appellant cannot contend that they had received the notification very late in the evening. Therefore, the present appeal
filed by the appellant.
2. Shri Willingdon Christian, learned counsel appearing on behalf of the appellant submits that there is no dispute that the subject two amending
notifications dated 12.11.14 & 02.12.14 were not issued for publication in the official gazette nor were they offered for sale on the respective dates of
their issue. This fact is also supported by the RTI reply vide letter F.No.DPPR/RTI/31/2015/2822 dated 21.8.2015 from the Directorate of Publicity &
Public Relations, New Delhi, and from the RTI reply dated 2.6.20 from CPIO and from the result of search gazette of ministry. He submits that in
terms of Section 5A of Central Excise Act in Sub-section (5)(a)(b), it is clear that a notification comes into force from the date of its issue by the
Central Government for publication in the official gazette and also it is published and offered for sale on the date of its issue. He submits that the
notification comes into force on the day when the aforesaid conditions are satisfied concurrently or simultaneously. Since in this case the impugned
two notifications were not issued for publication nor were they published in the official gazette nor offered for sale on the dates of issue, the said
notifications cannot be made effective from the respective dates of their issue. He also 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
2.1 As regard unjust enrichment he submits that the appellant have not passed on burden of higher duty to the buyers or any other person the retail
selling price of motor spirit and HSD were not increased but they remained the same as earlier before enhancement of the rate of duty or they were
reduced. He takes support of the following judgments:
• 2014 (303) ELT 496 (Guj.) UOI Vs. DHARIWAL INDS. 2015 (319) ELT A118 (SC)
• 2014 (305) ELT 510 (Guj.) ASHISH METAL ROLLING MILLS Vs. CCE
2.2 However, he fairly concedes that due to the bonafide error on the part of the appellant they had not raised this point of unjust enrichment before
the learned Commissioner (Appeals) and therefore, no findings have been given by the learned Commissioner (Appeals) on the issue of unjust
enrichment. He prays that on the issue of unjust enrichment, the matter may be remanded.
3. On the other hand, Shri H K Jain, learned Assistant Commissioner (Authorized Representative) appearing on behalf of the revenue reiterates the
finding of the impugned order.
4. 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).â€
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. The appellant have submitted the Notifications and search gazettes by the Ministry which are
scanned below:
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 & 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.
4.2 As regard the issue of unjust enrichment since the same was not raised before the learned Commissioner (Appeals), no finding was given by the
learned Commissioner (Appeals) and as requested by the appellant this issue needs to be reconsidered.
5. As per our above observations, we are of the view that the matter needs to be remanded to the adjudicating authority for passing a fresh order.
Accordingly, the impugned order is set aside. Appeal is allowed by way of remand to the adjudicating authority for passing a denovo order.
(Pronounced in the open court on 26.10.2021)
