TMI Blog2005 (3) TMI 134X X X X Extracts X X X X X X X X Extracts X X X X ..... Act itself. It is well settled that a rule made under an Act will not be valid if it conflicts with or is in derogation to a section in the Act. Hence a rule should not be construed in a manner that it conflicts with a Section of the Act. In the present case, the Tribunal has found that there were several correspondences between the assessee and the revenue, in which the assessee had been urging that they are entitled to the benefit of Notification No. 33/90 (N.T.), and that they are also entitled to Modvat credit against their despatches. Hence, the facts of the decision of the Supreme Court in India Cements Ltd. v. Collector of Central Excise [ 1989 (4) TMI 80 - SUPREME COURT] are similar to the facts of the present case. Thus, it is wel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er sub-rule 5 of Rule 233B? 3. Can the letter of protest dated 31-10-92 filed by the assessee. can have the retrospective effect of filing protest under Rule 233B? 2. Heard the learned Counsel for the parties. 3. The facts of the case have been given in the judgment of CEGAT dated 26-4-2002, by which the CEGAT set aside the order of the Commissioner (Appeals), who had rejected the assessee's claim for refund. The CEGAT by its order directed that the refund be given to the assessee, unless the duty has been passed on to the consumer. 4. The assessee is engaged inter alia in the manufacture of Printed Cartons at its factory at Thiruvottiyur, Chennai. It avails Modvat credit on various inputs used in the manufacture of printed cartons. Som ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y limitation and the proviso to Section 11B(1) does not apply. 7. The Tribunal reversed the judgment of the Commissioner (Appeals), and held that the payment made by the assessee was under protest, and hence there was no limitation to the claim for refund. 8. The Tribunal on a consideration of the facts observed that the question whether the payment vide PLA No. 580 dated 27-10-1992 was under protest or not has to be determined after taking into accounts all the facts and circumstances. From the records it appeared that the amount had not been paid voluntarily, but only after several correspondences between the assessee and the revenue in which the assessee had been urging that they are entitled to the benefit of the Notification No. 33/90 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the revenue, and in our opinion that is the substantive protest in writing. 10. On considering all the circumstances, the CEGAT held that the payment of duty in the present case in PLA No. 580, dated 27-10-92 was under protest. 11. As regards the plea of unjust enrichment, the Tribunal observed that if the assessee could show that the duty had not been passed on to the consumer in this case, it would be entitled to refund. 12. We agree with the view taken by the Tribunal. Whether duty has been paid under protest or not is basically a question of fact, and this Court in a reference cannot ordinarily interfere with findings of fact, unless they are based on no evidence or perverse. In our opinion, the findings of the Tribunal cannot be sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sal of the letter dated June 11, 1974 clearly shows that all possible contentions which could be raised against the levy of duty on the value of packing material were raised. If this could not be said to be a protest one fails to understand what else it could be. It does not require much time to analyse the contents of the letter. An ordinary reading with common sense will reveal to anybody that the appellant was not accepting the liability without protest. We have no hesitation to holding that the letter was in the nature of protest. That being the position, the question of limitation does not arise for refund of the duty. 16. In the present case, the Tribunal has found that there were several correspondences between the assessee and the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the fabrication of transmission line towers and the sub-station structures and Line Hardware materials in connection with the power supply in the State of Madhya Pradesh and that the provisions of the Central Excise Rules regarding obtaining licence and payment of Excise duty may not be applicable to the Central Workshop. On these facts, the Supreme Court observed:- A narrow interpretation of the said letter would give the impression that the Divisional Engineer was only lodging his protest against obtaining a licence. But, in our opinion, the said letter has to be read as a whole in the context in which the requirement for obtaining licence was being insisted, namely, that the goods manufactured at the Central Workshop were leviable to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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