TMI Blog1985 (11) TMI 152X X X X Extracts X X X X X X X X Extracts X X X X ..... er protest, the procedure laid down in Rule 233-B of the Central Excise Rules, 1944 had not been followed. He also noted that a purported claim contained in letter dated 16.4.82 from the appellant had not been received in his office copy thereof which was submitted later would show that it was not in the prescribed form and not in accordance with the Trade Notice issued as long back as in 1972. In his order, he noted that the price list filed on 28.12.81 was approved on 30.12.81. The question of paying duty under protest would arise only after according of the approval of the price list. The letter of protest is said to have been sent on 29.11.82; hence it cannot be treated as a protest in terms of Rule 233-B of Central Excise Rules, 1944. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ill be seen from the letter dated 29.12.81 itself. The Assistant Collector is not consistent when he states that the relevant price list was received on 29.12.81 and approved on 30.12.81 whereas letter No. PO/4966 a/55/81 dated 29.12.81 was received on the next day; by the time the letter was taken on file, the price list was already approved. A claim for refund arises in common law and is governed by the provisions of Sec. 11B of the Act. In construing a corresponding provision relating to a claim by the Department on the party (less charge claim), it has been held by the Delhi High Court that Sec. 11A contains limited power of review vide Bawa Potteries v. Union of India - 1981 E.L.T. 114 (Delhi). This has been reiterated in the case of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ule 173C(10) which provides for a filing of fresh list and even an amendment of the list filed or approved, as the case may be, if any alterations becomes necessary for any reason. If even amendment to a list is permissible, payment of duty under protest on a number of price lists should be an acceptable procedure to the Department. 5. The Senior Departmental Representative on the other hand pointed out that the price list had been approved, as filed without any amendment. There was, therefore, no scope for the issue of a speaking order. The letter dated 29-12-1981 related to exclusion or otherwise of the value of gunny bags on the score as to whether they are returnable or not. This is hardly a relevant consideration in the approval of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sfied that there was indeed a letter of protest as one would understand it. The point that the letter was dated 29-12-1981 taken on the file of the Asst. Collector on 30-12-1981 and the relevant price list was approved on 30-12-1981 itself does not make any difference to its being an acceptable letter of protest. Nothing prevents a party from filing a letter of protest along with filing of a price list at a higher value, particularly when it is noted from the letter of 29th December, 1981 that the cost of the bags was included under instructions by the Asst. Collector himself. There is considerable force in the arguments of the Advocate for the appellant that in terms of Rule 173C(8), payment of duty under protest even after the approval of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... returns. In fact, if they had not been done, the R.T.12 would have been returned for completion by the assessee. In these circumstances, we think that the provisions of Rule 233B have been specifically complied with as the Officer completing the R.T.12 returns is on notice that certain clearances have been made after payment of duty under protest, as will be evident from a perusal of the gate passes. The Officer completing the R.T.12 returns has to refer to these gate passes, amongst other things, to verify the correctness of the entries in the R.T.12 itself. We would therefore, conclude that the provisions of Rule 233B in regard to endorsement of gate passes and R.T.12 returns are directory and not mandatory in nature. This is particularl ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
