TMI Blog1989 (2) TMI 225X X X X Extracts X X X X X X X X Extracts X X X X ..... contention that they are classifiable under T.I. 17(4) and are eligible for exemption under Notification No. 66/82, dated 28-2-1982 exempting articles of paper. Following this decision the appellants are reported to have filed their claim for refund of duty already paid on such articles of paper. Originally, refund claim was for an amount of Rs. 24,17,017.83. This refund claim covered the period from 1-3-1982 to 20-4-1984. The Asstt. Collector allowed the refund claim partly. He, however, rejected the claim for Rs. 3,92,882.99 in respect of the period from 1-3-1982 to 15-3-1982 on the ground that there was no protest lodged. He also rejected the refund claim for Rs. 9,01,129.79 in respect of the period from 1-3-1983 to 30-11-1983 on the ground that no proper protest has been made and the claim is hit by time bar. The Asstt. Collector also rejected the refund claim for Rs. 77,238.64 relating to paper cones and tubes on the ground that these goods were not the subject matter of appeal decided by the Collector (Appeals) on 19-4-1984 and hence consequential relief cannot be granted on these goods. Against this order of the Asstt. Collector, the apellants filed the appeal before th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laim for this amount on the ground that they did not file protest as required under Rule 233-B of the Central Excise Rules and the protest is not a valid one. The appellants have also not filed any appeal against the approval of classification list 2/83-84 classifying the product under T.I.68. The authorities below have held the view that classification under T.I. 68 covered by CL No. 2/83-84 has therefore become final and their claim for refund is time barred. Shri Hidayatullah pointed out that this view of the authorities below is not sustainable because of the following reasons : Sub-rule (3) of Rule 173-B deals with payment of duty under protest. As per this sub-rule 3, what is required to be done by the assessee is to give an intimation to the effect that he is paying the duty under protest at the rate approved by the officer. In this case, it has been complied with an their letter dated 3-3-1983 is such an intimation. He also referred to Section 11B proviso and contended that Section 11B does not talk about protest being made in accordance with the provisions laid down in the Rules. The said Section 11B only says that the limitation of six months shall not apply where any d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also other items like spools and cores, which were not the subject matter of appeal before the Collector (Appeals). He also took us through the Rule 233B of the Central Excise Rules and contended that a specific reference has been made to the requirement of filing an appeal wherever such a course is available and in cases such a course is not available, he may file a representation which will be considered and suitable appealable orders passed. Shri Arya pointed out that the appellants had not choosen to comply with any of these requirements either by way of filing an appeal in respect of classification list No. 2/83-84 or by filing a representation against the classification list. Even the so-called letter of protest is not indicative of any grounds. Hence, he vehemently contended that in this case, in terms of Rule 233B, the letter dated 3-3-1983 cannot be construed as a valid protest which would be eligible for claiming the benefit under proviso to Section 11B. He also submitted that Section 11B is to be read alongwith the Rules and cannot be read in isolation. He contended that merely an endorsement of protest or a letter showing that the duty had been paid under protest could ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the sub-rule (3) of 173-B it is enough if the assessee gives an intimation of protest. We are, however, unable to agree with this argument because sub-rule (3) of Rule 173-B reads as follows: Where the assessee disputes the rate of duty approved by the proper officer in respect of any goods, he may, after giving an intimation to that effect to such officer, pay duty under protest at the rate approved by such officer. This sub-rule clearly indicates that the assessee s action to give a protest intimation would arise after the approval of rate of duty by the proper officer, which the assessee disputes. In this case, the letter has been given anterior to the approval and not posterior to the approval. On this Shri Hidayatullah cited the decision of the South Regional Bench of the Tribunal reported in 1986(26) E.L.T. 553. We have carefully considered this decision. We would like to extract the relevant observations of the Tribunal: Nothing prevents a party from filing a letter of protest alongwith 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , assessment on these two products viz. paper cones and tubes would not get disturbed by the decision of the Collector (Appeals) in his order dated 19-4-1984. Hence, in regard to these two products we are inclined to accept the arguments of the learned Sr. advocate that the letter of protest dated 3-3-1983 is a valid protest in view of the pendency of the appeal. In this, we are also finding support in the judgment of the Tribunal reported in 1985(22) E.L.T. 522, wherein the Special Bench, New Delhi have held as below :- the basic fact in this case is that the respondents protested as early as March 1975 that the goods were not liable to duty and they were allowed to pay duty under protest. The letters were addressed to the Collector s office and the department has produced no evidence that these protests were ignored or the respondent was informed to appeal against the classification list dated 2-5-1975 as this was tantamount to rejection of their protest made to the Collector s office in March/April 1975. On the contrary, they persisted in agitating the matter and finally succeeded in getting an appealable order from the Collector. Whether this order involves a review of the f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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