TMI Blog1995 (5) TMI 167X X X X Extracts X X X X X X X X Extracts X X X X ..... he confirmed the decision of the Assistant Collector in rejecting the claim of refund sought by the appellant. For the period from 1-6-1981 he held that the appellant is not entitled for the refund as the procedure prescribed under Rule 233B was not followed by him. It is against that decision the present appeal is filed. 2. In the instant case the claim of refund made by the appellant was during the period from 1-3-1975 to 24-12-1981. Learned Collector (Appeals) has granted the relief from 1-3-1975 to 1-6-1981. But with respect to the period from 1-6-1981 he held that the protest filed by the appellant on 17-1-1986 [sic it is 17-1-1976] will come to the aid of the appellant till 1-6-1981. However, with effect from 1-6-1981 the protest wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it was paid under protest cannot be accepted and therefore, the claim was rejected rightly. In support of his contention he relied upon the following decisions :- (i) 1987 (28) E.L.T. 486; (ii) 1989 (42) E.L.T. 714; and (iii) 1987 (32) E.L.T. 747. 5. We have considered the submissions of both sides. It is now seen that Rule 233B itself was inserted by Notification No. 115/81-C.E., dated 11-5-1981. Admittedly the appellant has not followed this procedure. But it is seen that the appellant had already made a protest letter on 17-1-1986 which was received by the Department on 25-1-1976. On the basis of that protest letter filed by the appellant, the learned Collector of Central Excise (Appeals) has granted him the refund relating to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1981 till 10-5-1981. It was, in those circumstances, the above observations were made by the Tribunal and that case also does not apply to the facts of this case. 7. Learned JDR, Shri Ghosh further relied upon the decision reported in 1987 (32) E.L.T. 747. In that particular case, the Tribunal held that if there is no protest as required under Rule 233B then the claim of refund from 1-6-1981 will be barred by limitation. This decision supports the argument of the learned JDR. 8. This decision was rendered by the Tribunal on 8-9-1987. As against this decision learned Advocate, Shri Roychowdhury relied upon a decision of the Tribunal reported in 1990 (48) E.L.T. 571 in the case of Collector of Central Excise v. Ashok Manufacturing Co. Ltd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n was rendered on 6-9-1990. In this particular decision at pages 241 and 242 their Lordships of the Hon ble Bombay High Court held as follows :- The finding of the Assistant Collector that refund of Rs. 40,628.36 covered by 46 Gate Passes cannot be granted because the duty was not paid under protest is incorrect in factually and in law. The learned counsel appearing on behalf of the petitioner pointed out that the duty was paid under protest during the pendency of the revision petition and after the decision of the revision petition, the duty recovered cannot be retained. Shri Desai, learned counsel appearing on behalf of the Department, submitted that the procedure prescribed under Rule 233B of Central Excise Rules, 1944 was not followe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8 for the period prior to 1-3-1984. In para 8 of the order the Tribunal held as follows : - In the light of the above discussion, we allow the two appeals in terms that classification of the subject varieties of Dokta is ordered under Item 68 during the period prior to 1-3-1984 and consequential refund, subject to the limitation of Section 11B, is ordered to be granted to the appellants. It is, thus, seen that the refund claims are filed in terms of the above-said order. The appellant paid the duty during the pendency of this proceedings. When there was a general protest filed by the appellant on 17-1-1986 (sic), in terms of that protest the refund claim from 25-1-1976 to 1-6-1981 is already granted. Therefore, in the facts and circ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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