TMI Blog1990 (5) TMI 127X X X X Extracts X X X X X X X X Extracts X X X X ..... test . The Collector (Appeals) held in his impugned order that the contention of the Assistant Collector was correct in terms of Rule 233B of the Central Excise Rules, which clearly provides that an endorsement should be made on the gate pass that duty had been paid under protest. He went on to add that if the appellants had not made such indication, the assumption that the clearances were made without protest would be justified. 2. The appellants were represented by Shri K.K. Banerjee, learned Advocate, when the appeal was heard. He submitted that the appellants had been paying duty under protest on their products which were wrongly classified by the department under Tariff Item 15A, as against the correct classification 68 of the Centra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ereas the refund claimed relates to payment of duty during the period April, 1978 - September, 1978 and the provisions of Rule 233B could not obviously be fulfilled for such clearances. If the endorsement Under Protest was not there in the Gate Passes during the particular period, it cannot be presumed that duties were paid without protest. As has been correctly contended in the appeal, the requirements of Rule 233B which was introduced in May 1981 cannot be applied to assessments made during 1978, which form the subject matter of the present appeal. Hence the findings of the Collector have got to be set aside. But the matter needs to be looked into closely to see if payment of duty under Item 15A was made under protest simpliciter, shorn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on was revised later on due to any reason involving any refund of duty paid by them they should make the application for refund in the prescribed form supported by the duty paying documents. 5. We find that the Assistant Collector had not passed any order leading to the present appeal whereby he had rejected any claim as time-barred, not being saved in that regard due to payment of duty under protest. He had written a letter dated 25-2-1984 proposing to deduct a sum of Rs. 33,811.18 from the sum of refund due to them due to Payment of duty under T.I.15A without under protest . This letter brought forth their reply dated 3-4-1984 wherein they invited his attention to the Order-in-Appeal dated 30-1-84 passed by the Collector (Appeals) allo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th reference to the retest reports issued by the Chief Chemist, Central Revenues Control Laboratory, for 13 products for which samples were drawn for. But this order was passed by him on their representation claiming that silicone fluids including oils emulsion, and silicone greases manufactured by them are not classifiable under Item 15A. They had also referred to the Trade Notice issued by the Collectorate regarding the scope of Tariff Item 15A, which, they claimed, excluded their products from the scope thereof. 6. All this would go to show that the appellants had staked the claim for classification of their product under Item 68, which also found acceptance at the level of the Collector. Pursuant to his decision on classification, acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... letter of the company clearly showed that all possible contentions which could be raised against the levy of duty were raised. The Court observed that if this could not be said to be a protest, one fails to understand what else it could be. The letter will reveal that the appellant was not accepting the liability without protest, It was, therefore, held by the Court that the letter was in the nature of protest and accordingly the question of limitation did not arise for refund of duty. 7. The ratio laid down in the above said judgment of the Hon ble Supreme Court would squarely apply to the facts and circumstances of the present case. We accordingly allow the appeal and set aside that part of the Order-in-Appeal whereby the rejection of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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