TMI Blog1989 (3) TMI 216X X X X Extracts X X X X X X X X Extracts X X X X ..... r No. 315/86-D, dated 21-5-1986. In this order the Tribunal had held that the repairing of cops which are old and unserviceable would not amount to manufacture of cops attracting excise duty. Removal of old and unserviceable parts of cops and their replacement by new parts in themselves was equated to retreading of old and unserviceable tyres or re-shelling of old and unserviceable roller shafts which were held in earlier decisions as not amounting to manufacture. In respect of other matters involved before the Tribunal the matter had been remanded to the Collector of Central Excise, Meerut for de novo adjudication in the light of the observations made by the Tribunal in the said order. That de novo adjudication order is yet to be passed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Collector, Central Excise, Meerut leading to Tribunal s order No. 315/86-D, dated 21-5-1986 was July, 1978 to July, 1981, 1-10-1981 to 27-2-1981 and 2-3-1981 to 31-3-1981. It was, therefore, felt by the adjudicating officer, namely, the Assistant Collector, Central Excise, Ghaziabad that except for the period from 2-3-1981 to 31-3-1981 the refund claims were not covered by the C.E.GA.T s order dated 21-5-1986. (3) The respondent company has not followed the provisions of sub-rule (1) of Rule 233B of Central Excise Rules, 1944 (hereinafter referred to as the Rules) regarding the payment of duty under protest inasmuch as no protest has been lodged by the respondent company. Nor have the provisions of sub-rule (2) of Rule 233B also be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ese circumstances the duty cannot be said to have been paid under protest at-all. He states that the provisions of Rule 233B are very clear in this respect. Sub-rule (1) according to the learned DR enjoins upon an assessee to furnish a letter of protest to the proper officer giving grounds for payment of duty under protest. Sub-rule (5) stipulates that where the remedy of appeal or revision is not available to an assessee against an order or decision which necessitated him to deposit the duty under protest he may within three months of the date of delivery of the letter of protest give a detailed representation to the Asstt. Collector. Sub-rule (6) envisages that where the remedy of an appeal or revision is available to an assesse against a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... days was given for replying the show cause notice and the date of hearing was also fixed soon after 10 days. Despite the respondent company s request for adjournment, the Asstt. Collector did not accede to their request by giving any valid reasons. The procedure followed by the Asstt. Collector smacks of a desire to reject their refund claims even before considering the reply of the respondent company. This procedure, to say the least, is only a lip service to the principles of natural justice and it is no credit to the adjudicating officer. 4. Coming to the facts of the case, we do not find that the rejection of refund claims has been done on valid grounds. Asstt. Collector s objection that the refund claims are not valid as long as the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t their process as exempted from duty. We have perused all these lists and their covering letters. No doubt is left that the payment of duty was made under protest. 4.1. Once a protest has been lodged it becomes the duty of the Asstt. Collector to dispose of the protest by an appelable order so that the respondent company could go in appeal against those orders. Unless the Asstt. Collector disposes of the protest in the aforesaid manner, as enjoined under Rule 233B, the protest cannot be deemed to have subsided. The protest is alive till it is disposed of by the Asstt. Collector by a suitable speaking order. This view is fortified by the Tribunal s judgment in Andhra Cement Company Ltd. (mentioned supra) relied upon by the learned advocat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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