TMI Blog2006 (3) TMI 378X X X X Extracts X X X X X X X X Extracts X X X X ..... involved in these appeals is that Commissioner (Appeals) has rejected the refund claims filed by the appellants in respect of duty paid by them at the time of presentation of the Bill of Entry which was disputed and later on allowed by the Commissioner (Appeals) with regard to dispute relating to classification. While the appellants claimed that since the assessment order was contested by them di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tral Excise, Mumbai - 2004 (165) E.L.T. 175 (Tri. - Del.) where it was held that filing of appeal itself amount to protest and refund is not to be denied on grounds of limitation when disallowance of benefit of notification challenged by appellant and Such benefit finally allowed by Tribunal. It was submitted that in their case the classification claimed by them which was rejected by the original ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inapplicable in case refund raising out an order passed by the lower appellate authorities as refund will arise or not would be known only after the order granting refund has been passed. 5. The learned S.D.R. however, reiterated the decision of the Supreme Court and submitted that where the procedure under Rule 233B of the Central Excise Rules, 1944 was not followed the payment of duty cannot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prescribed unlike Rule 233B in Central Excise Rules. Therefore as held in a series of Tribunal decision cited by the appellants the payment has to be considered as under protest and refund cannot be denied on this ground. 7. In view of above, I set aside the order of the Commissioner (Appeals) and hold that refund cannot be denied on the ground of time-bar if it is otherwise eligible. 8. Appea ..... X X X X Extracts X X X X X X X X Extracts X X X X
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