ORDER
P.G. Chacko, Member (J)
1. The appellants are Public Sector Undertakings 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. No Central Excise duty is payable on coal. The appellants use conveyor belting in their collieries. During the period 1.3.1986 to 31.3.1994, M/s. Western Coal Fields Ltd. (Appellant in E/2738/98) purchased such conveyor beltings from M/s. Fenner (India) Ltd. The other appellant made similar purchase from the same source during 20.7.1988 to 15.1.1994. M/s. Fenner (India) Ltd. had paid duty on the goods under protest on account of a classification dispute. The classification dispute came to be settled ultimately in their favour by the Hon’ble Supreme Court on 28.3.1995. M/s. Fenner (India) Ltd. did not claim refund of differential duty on the goods. However, their buyers viz. the appellants herein filed refund claims. M/s. West Coal Fields Ltd. and M/s. South Eastern Coal Fields Ltd. filed such claims on 1.1.1997 and 20.12.1996 respectively. Show-cause notices were issued by the department proposing to reject these claims on the grounds of limitation and unjust enrichment. The proposal was contested. The adjudicating authority rejected the refund claims, by taking the view that any buyer of goods, on which duty had been paid by its manufacturer, was precluded from claiming refund of duty under Section 11B of the Central Excise Act as he himself had not paid duty on the goods. The first appellate authority rejected the refund claims as time-barred and as hit by the bar of unjust enrichment. Hence the present appeals.
2. Heard both sides. Ld. Counsel for the appellants submitted that as the manufacturer of the conveyor beltings had paid duty under protest, time-bar under Section 11B was not applicable to the refund claims filed by the buyers (appellants). In this connection, reliance was placed on the Supreme Court’s judgment in National Winder v. CCE, Allahabad , wherein it was held that, if duty was paid by a manufacturer under protest, then the limitation of six months would not apply even to a claim for refund, by the purchaser. Ld. SDR submitted that the judgment in the case of National Winder (supra) was treated as per incuriam by a larger bench of the apex court in the case of CCE Mumbai v. Allied Photographics India Ltd. : It was pointed out that, according to the ruling in Allied Photographics case, any protest registered by the manufacturer of goods while paying duty thereon did not confer any benefit on the buyer for the purposes of Section 11B. Ld. counsel then made an attempt to distinguish the case of Allid Photographic India Ltd. (supra) from that of the instant case. Both sides also addressed the question whether the refund claims filed by the appellants could be held to be barred by unjust enrichment.
3. Having considered the rival arguments, we think it appropriate to deal with the limitation issue at the outset. Under Section 11B (as amended under the Central Excise and Customs Laws (Amendment) Act, 1991), the “relevant date” (from which the period of limitation for the filing of a refund claim is to be completed), where the refund claim is filed by a person other than the manufacturer, is the date of purchase of goods by such person. Admittedly, in the instant cases, the refund claims were filed beyond the period of limitation as reckoned from the date of purchase of the goods. A larger bench of this Tribunal held, in the case of National Winder v. CCE, Allahabad that the purchaser was duty bound to file his claim for refund within the period of six months from the date of purchase of the goods from the manufacturer and that he did not acquire the right to claim refund of the duty paid by the manufacturer under protest, unaffected by time-bar provided under Section 11B. This view of the Tribunal was disagreed with by the Apex Court in the case of National Winder . The said decision of the apex court was rendered by a Division Bench of two Judges. Another Division Bench of the Court, later on, noticed a conflict between the above judgment of the Court and paragraph 104 of the judgment of the Constitution Bench of nine Judges in the case of Mafatlal Industries Ltd. (Tri-LB) : 2000 (91) ECR 937 (SC)ECR 209 and, accordingly, referred the matter to a larger bench of the court. This reference was answered by a Bench of thee Judges of the apex court in its judgment in the case of Allied Photographies India Ltd. (supra), wherein it was held as under:–
4. On the above basis, their lordships found that the judgment of the Division Bench in the case of National Winder was per incuriam and it was held that a purchaser of the goods was not entitled to claim refund of duty made under protest by the manufacturer, without complying with Section 11B. The decision of the apex court (Bench of three Judges) in the case of Allied Photographics India Ltd. (supra) works against the present appellants.
5. It was contended by ld. counsel that, unlike the manufacturer of goods, the purchaser had no way to register protest and, therefore, the provisions of Section 11B relating to payment of duty under protest should not be held applicable to refund claim filed by the purchaser. We are afraid, we cannot accept this plea. As observed by the Tribunal’s larger bench in the case of National Winder (supra), the purchaser is bound to file his claim for refund of duty paid under protest by the manufacturer, within the period of limitation prescribed under Section 11B, this period having to be reckoned with reference to the date of purchase of the goods. It may be noted that the law differentiates the “manufacturer” and the “purchaser” for purposes of refund of duty.
Lastly, as stated above, Section 11B dealt with claim for refund of duty. It did not deal with making of refund. Therefore, Section 11B(3) stated that no refund shall be made except in terms of Section 11B(2). Section 11B(2)(e) conferred a right on the buyer to claim refund in cases where he proved that he had not passed on the duty to any other person. The entire, scheme of Section 11B showed the difference between the rights of a manufacturer to claim refund and the right of the buyer to claim refund as separate and distinct. Moreover, under Section 4 of the said Act, every payment by the manufacturer, whether under protest or under provisional assessment was on his own account. The accounts of the manufacturer are different from the accounts of a buyer (distributor). Consequently, there is no merit in the argument advanced on behalf of the respondent that the distributor was entitled to claim refund of “on account” payment made under protest by the manufacturer without complying with Section 11B of the Act.
6. For the reasons already noted, we are unable to interfere with the impugned orders which found the appellants’ refund claims to be time-barred. The impugned orders have the support of the Apex Court’s ruling in CCE v. Allied Photographics India Ltd. (supra). As the refund claims in question are time-barred, it is not necessary for us to examine the issue relating to unjust enrichment.
7. In the result, both the appeals stand dismissed.
(Operative part of the order was pronounced in open Court on 8.8.2005).