TMI Blog1989 (7) TMI 223X X X X Extracts X X X X X X X X Extracts X X X X ..... Schedule is referred to hereinafter as the CET and the said Act as the Act ). The respondents filed a claim in the Assistant Collector s office on 19-7-1982 for refund of the duty paid as aforesaid, on the ground that the classification of the goods under Item No. 68, CET was wrong. They further contended that they had been paying duty all along under protest and so the limitation in Section 11B of the Act would not apply. The Assistant Collector dismissed the claim as barred by limitation under Section 11B of the Act, as well as on the merits of the dispute. The matter was carried in appeal before the Collector (Appeals) who, in his impugned order, noted that it was clear from the records that the respondents had contested the levy and l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... saver of limitation in cases of payments of duty under protest was not in existence prior to 6-8-1977 and, therefore, even if duty had been paid under protest, such saver of limitation was not available during the pre 6-8-1977 period. 4. Shri Lachman Dev, for the respondents, submitted that prior to 1981 when a specific rule regarding protests was inserted in the Central Excise Rules, 1944, there was no prescribed procedure for payment of duty under protest. However, as could be seen from the annexures to the (so-called) Cross-objection , the respondents had protested against the levy from the very beginning. He further submitted that the Ayurvedic drugs stood excluded from Item 14E and in view of the Gujarat High Court s judgment in Dar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out payment of duty would invite penal action. Thereupon, on 5-5-1975, the respondents applied for Central Excise licence under protest. Deposit challans dated 15-9-,1975, 27-8-1975, 3-10-1975, 18-10-1975 and 28-11-1975 also are marked under protest , 7. In the case of Collector v. India United Mills (supra), the gate passes bore the endorsements duty paid under protest but there were no reasons nor any letter to the Central Excise authority as to why the duty was being paid under protest. Nor were the debits in the PLA under protest. The respondents did not also raise any dispute about the rate of duty after receipt of the Superintendent s letter in this behalf. It appears that they agreed to the classification suggested by the Assis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... umstances, we are of the view that the refund claim in the present case was not barred by limitation. 10. Prior to the insertion of Rule 233B in the Central Excise Rules, 1944, by Notification No. 115/81, dated 11-5-1981, there was no procedure statutorily prescribed for registering protest against duty payments. What is important, in our view, is that there should have been a protest setting out the reasons therefor. This, there has been in the present case. In the case of Western India Plywood Ltd., Baliapatam v. CCE, Cochin -1986 (23) E.L.T. 227, the manufacturer had lodged a letter of protest on 8-7-1963 (before 1977 and 1981) contending that their product compreg was not plywood and hence not excisable on the department s seeking to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plying the ratio of the judgment it will be seen that since Ayurvedic medicines are specified in Item No. 14E though for the purpose of exclusion, they would not fall under Item No. 68 CET. It was evidently to overcome the effect of the above judgment that an explanation was inserted in Item No. 68 CET by the Finance Bill, 1980, reading as follows :- Explanation :- For the purposes of this Item, goods which are referred to in any preceding Item in this Schedule for the purpose of excluding such goods from the description of goods in that Item (Whether such exclusion is by means of an Explanation to such Item or by words of exclusion in the description itself or in any other manner) shall be deemed to be goods not specified in that Item. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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