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2023 (12) TMI 250 - CESTAT MUMBAIPrinciples of natural justice - opportunity had not been accorded to the appellant by the first appellate authority for being heard - refund of duty paid under protest - HELD THAT:- It is found from the impugned order that the issue of limitation has been dealt with in terms of rule 233B of Central Excise Rules, 1944 which came into force only from 11th May 1981. Consequently, and in the absence of any mechanism prescribing for ‘protest’, the presumption in the adjudication order of failure to ‘protest’ is not tenable. The appellant claims that ‘protest’ had been filed with the department by mail, ‘under certificate of posting’; that has not been denied. The first appellate authority has taken upon itself to infer that, with certain eventualities not occurring, presumption of ‘not paid duty under protest’ was to be operated as default - it is found from the decision of the Hon’ble Supreme Court, in BHOR INDUSTRIES LTD. VERSUS COLLECTOR OF CENTRAL EXCISE [1989 (1) TMI 128 - SUPREME COURT], that classification list came to be filed for the first time in November 1975. At the same time, in the same judgment, it has been noted that the classification list had been approved by the competent authority in December 1977 before which, in a separate dispute, the first appellate authority in order of June 1974 had held the goods not liable to excise duty. Notwithstanding the lapse of time since the dispute on excisability was taken up and concluded and its appearance before the the Tribunal for the third time, a fresh decision cannot be directed after taking the submission on facts, as well as certificate of the Chartered Accountant, into account - matter remanded back to the first appellate authority on the terms and conditions directed by the Tribunal formerly and subject to the law as judicially determined.
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