TMI Blog2002 (3) TMI 698X X X X Extracts X X X X X X X X Extracts X X X X ..... pressure of the Department they paid the differential duty during the period 6-12-95 to 22-10-1997 in respect of additions to the assessable value made on account of transportation, insurance, handling and delivery charges for the clearances made during the period from 1-3-1994 to 30-11-1996; that they filed a refund claim on 25-6-1998 which was rejected by the Deputy Commissioner, under Adjudication Order No. 55-Refd/99 dated 18-11-1999 being time-barred holding that letters dated 5-10-95 and 5-12-95 were not letters of protest as these were merely letters of disapproval with the Superintendent on various issued and that the procedure specified under Rule 233B of the Central Excise Rules was not followed by them; that the Commissioner (Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r protest. He, further mentioned that even after introduction of Rule 233B, no form has been prescribed for lodging protest; that thus the decision in India Cements case is applicable to the present matter; that it has also been held by the Tribunal in the case of Mahalakshmi Industries v. C.C.E., Chandigarh, 1995 (80) E.L.T. 352 (T) that the procedure laid down under Rule 233B is only directory and, therefore, the procedural lapse cannot be a ground for denying the refund claim so long as there is a lodging of protest in the matter; that similar views were expressed in the case of C.C.E, Baroda v. Gujarat Communication Electronics Ltd., 1997 (96) E.L.T. 179 (T) wherein it was held that if the gate passes were endorsed with the mark paym ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... complete detailed statement; that this by no stretch of imagination can be termed as protest : that in the said letter they were giving their views about the points raised by the Department and in letter dated 5-12-95 they only mentioned that insistence for recovery would be unjustified and against the principle of natural justice; that then from next day they went on paying the duty for over a period of almost two years without any objection, without asking for any show cause notice and without making any representation against the levy of duty. The learned SDR finally submitted that the Constitutional Bench of Nine Judges of the Supreme Court in the case of Mafatlal Industries Ltd. v. Union of India, 1997 (89) E.L.T. 247 (S.C.) has cle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er of protest and on service of the decision, he shall have no right to deposit the duty under protest. In the present matter the appellants have placed reliance on two letters dated 5-10-95 and 5-12-95 which according to them were letter of protest. On a perusal of these two letters, we agree with the submissions of the learned SDR that these letters only conveyed their point of view and these were not in effect letters of protest as the appellants continued to make payment of duty for subsequent clearances also. Moreover, even if these two letters are regarded as letters of protest, they had not followed the procedure outlined in Rule 233B at all. In our view there was not even substantial compliance of the requirements of Rule 233B. In t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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