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2005 (3) TMI 134 - HIGH COURT OF JUDICATURE AT MADRASModvat credit - Refund - Protest - Reference to High Court - retrospective effect of filing protest under Rule 233B - Payment under protest since no letter filed on that date giving any grounds for payment under protest and subsequently also filed no representation for payment made under protest as per sub-rule 5 of Rule 233B? - HELD THAT:- In our opinion Rule 233B cannot control the full effect of the proviso to Section 11B(1). A rule made under the Act cannot limit a provision in the 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 well settled that the meaning of the words "under protest" must not be taken in a narrow and pedantic manner. An overall view of the matter has to be taken, and hence we are of the opinion that the Tribunal has taken a correct view considering the facts and circumstances of the case. In view of the above, we find no merits in this reference petition and it is accordingly rejected.
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