TMI Blog2002 (2) TMI 705X X X X Extracts X X X X X X X X Extracts X X X X ..... d appealed to the Commissioner (Appeals). The Commissioner (Appeals) allowed the appeal and set aside the impugned order before him and remanded the matter to the adjudicating authority for adjudication afresh. On such adjudication, the Joint Commissioner dropped the proceedings in the demand. In the meantime, the manufacturer had claimed refund of the amount that it had deposited. The Asstt. Commissioner rejected the claim on the ground that it was barred by limitation. He did not accept the contention of the manufacturer that the duty having been paid under protest was safe from limitation. He said later protesting the payment of duty was filed on 1-4-98, after the duty was paid on 31-3-98. The protest would be valid only prior to payment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... except in cases where duty is paid by orders of a Court, every protested payment would require a written protest specified under Rule 233B. This ground was explained by the Departmental Representative. 7. This argument it appears to me, ignores Paragraph 83 of the Supreme Court judgment. The Court in that paragraph was addressing itself to the argument of the Counsel for the petition relating to interpretation of amended Section 11B that any claim for refund including one arising as a result of an appellate or other order or a superior Court or authority would have to be regulated by Section 11B. The provision of Section 11B of the Act would not be available in a case where the refund has arisen as a consequence of a decision of an appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to in Paragraph 83 when the assessee pays the duty, but protests the payment of duty by filing an appeal. The relevant provision of the law required that before the Appellate authorities provided in the statute either the Commissioner (Appeals) or the Tribunal can hear the appeal, deposit of duty has to be made. Therefore every person intending to appeal any liability to pay duty either depositing the duty in question or seek its waiver. If any waiver is granted request of refund will not arise. Any duty that the manufacturer pays in that situation or either he files an appeal or either when the appeal is pending would be the duty paid under protest, the protest being by way of appeal, revision etc. In Paragraph 85 the Court was concerne ..... X X X X Extracts X X X X X X X X Extracts X X X X
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