TMI Blog1994 (8) TMI 155X X X X Extracts X X X X X X X X Extracts X X X X ..... in the proviso means the payment of duty by the manufacturer or does it mean the payment of duty by the claimant? If we presume that in the proviso any duty paid under protest refers to the duty paid by the assessee then there can be no dispute that any claimant can claim refund without any time limitation. However, if we presume that claim for refund is invariably connected with the payment then any duty that has been paid their protest will refer to the duty paid under protest by the claimant. The point for examination in such cases will be whether the claimant had lodged any protest at the time of payment of such duty. I also observe that the relevant date for counting the period of six months is the date of purchase in the case where th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the question of law in Annexure B which are reproduced below for the sake of convenience :- ANNEXURE `A - STATEMENT OF THE CASE M/s National Winder, Varanasi (Proprietors M/s. Sah Electrical Industries Pvt. Ltd.) (hereinafter referred to as the applicants) are, inter alia, engaged in the various models of electric fans. 2. The applicants have entered into an agreement with M/s Vikas Engineering, Lucknow (for short Vikas), whereby Vikas have manufactured and sold electric oscillating table fans under the brand name Ginni to the applicants during the period from 10-10-1990 to 6-5-1991. The aforesaid variety of fans have been sold exclusively to the applicants. Initially, Vikas paid duty on these electric oscillating table fans ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de to the applicants. In support of the refund claim, the applicants have also submitted the invoices by which the goods purchased from Vikas were sold by the applicants. The applicants have also submitted a certificate from Chartered Accountant stating that they have not passed on the burden of excise duty to their customers. 7. The Asstt. Collector of Central Excise passed Order-in-Original No. Refund/33/92, dated 14-12-1992. He held that the applicants claim was not hit by limitation of six months in view of the fact that the duty was paid under protest and that the applicants have not passed on the burden of excess excise duty to their customers. However, the Asstt. Collector held that the applicants would be eligible for the excess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... manufacturer can file the refund claim under the new provisions of Section 11B, the second proviso to Section 11B(1) would apply only in a case of refund claim filed by the manufacturer since the concept of payment of duty under protest in terms of Rule 233B is applicable only in respect of manufacturer and not in respect of consumer. Accordingly, the Collector (Appeals) held that the refund claim filed by the applicants was barred by limitation under Section 11B. 11. Aggrieved by the aforesaid order, the applicants filed a stay application and an appeal before the Appellate Tribunal. This stay application and appeal were numbered as E/Stay/1485/93-NRB and E/2657/93-NRB respectively. The applicants received a hearing notice only for the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the manufacturer and not by any other person than the manufacturer especially when in terms of Section 11B(1) any person including person other than a manufacturer can file a refund claim? (sic) 3. Whether in the facts and circumstances of the case, the Tribunal was correct in holding that the second proviso to Section 11B(1) provides that the limitation of six months would not apply where duty has been paid under protest will not apply to the refund claim filed by persons other than manufacturer whereas the Section 11B(1) itself provides that a refund claim can be filed by the manufacturer/assessee and also by any other person other than manufacturer/assessee? 4. Whether in the facts and circumstances of the case the Tribunal was no ..... X X X X Extracts X X X X X X X X Extracts X X X X
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