TMI Blog2013 (5) TMI 570X X X X Extracts X X X X X X X X Extracts X X X X ..... , which was approved by the Assistant Commissioner of Central Excise. In the present case, the appellant after filing letter of protest (as claimed by the appellant), they filed classification list claiming the goods are dutiable under Heading No.87.04. So, the said case law is not applicable herein. The appellant paid duty on the basis of approved classification list which was not challenged before the Commissioner (Appeals) and therefore, the refund claim application filed on 18.5.1999 is not maintainable and also barred by limitation. Thus, there is no reason to interfere with the orders passed by Commissioner (Appeals). Accordingly, the appeal filed by the appellant is rejected. - Appeal No. E/262/08 - Final Order No. 40102/2013 - Dated:- 7-3-2013 - Shri P.K. Das and Shri Mathew John, JJ. For the Appellant: Shri N. Prasad, Advocate For the Respondent: Shri D.P. Naidu, Addl. Commr. (AR) JUDGEMENT Per P.K. Das; After several round of litigations, ultimately the matter was taken up for de novo adjudication in terms of the judgement dated 30.11.2005 of the Hon ble Madras High Court in the W.A. Nos.2114/2002 2219/2002 whereby the Hon ble High Court remand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e refund claim application is not barred by limitation. He submits that the original authority observed that original acknowledged copy of the under protest letter was not furnished to the department. He submits that original acknowledged copy of the under protest letter has been submitted to the department. So, they produced photo copy of the said letter. He also submits that this is a new issue taken up in the denovo adjudication order which is not permissible under the law. It is observed in the order that they failed to comply with the procedure under Rule 233B of the erstwhile Central Excise Rules. It is contended by the ld. Advocate that the procedure prescribed under Rule 233B of the erstwhile Rule is not mandatory. At any event, they have mentioned payment of duty under protest in the gate pass. Therefore, it will be treated as under protest. He submits that Revenue was bound to pass order on the said under protest letter before rejection of refund claim. In this context, he relied upon the decision of the Tribunal in the case of Neptune Polymers Vs CCE Ahmedabad 1995 (77) ELT 388 (Tribunal), wherein it has been held that statutory right of refund under Section 11B cannot b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... He also submits that appellant did not follow the procedure under rule 233B of the erstwhile Central Excise Rules, 1944. In this context, he drew attention of the Bench to RT-12 returns where there is no mention of payment of duty under protest and assessment was also finalized. He further submits that they have put the rubber stamp of duty paid under protest in their copies of gate passes and not intimated to the department which was admitted by the appellant before the original authority. 4.1 Regarding unjust enrichment, Ld. AR drew attention of the Bench to sample copy of the gate pass wherein it showed that duty payment was reflected in the gate pass. In terms of Section 12A 12B of Act, 1944 the onus lies on the assessee to establish that the burden of duty was not passed on to the customer which they failed to discharge. He also showed sample copy of TR-6 challan which would show that payment was made by the customers such as J. Victor, Thangaraj etc. In this context, he relied upon the decision of the Hon ble Punjab Haryana High Court in the case of Steek Strips Ltd. Vs CESTAT - 2010 (262) ELT 129 (P H) which was upheld by the Hon ble Supreme Court as reported in 201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 1999 (113) ELT 353 (SC), the Honble Supreme Court held as follows: 13. The levy of excise duty on the basis of an approved classification list is the correct levy, at least until such time as to the correctness of the approval is questioned by the issuance to the assessee of a show cause notice. It is only when the correctness of the approval is challenged that an approved classification list ceases to be such. 14. The levy of excise duty on the basis of an approved classification list is not a short levy. Differential duty cannot be recovered on the ground that it is a short levy. Rule 10 has then no application. 15. We are, therefore, of the opinion that the judgment in Ballarpur Industries, which did not advert to Rule 173B, does not lay down the law correctly and it is over-ruled. The decision in Rainbow Industries, on the other hand, correctly lays down the law. It was delivered in the context of Rule 173C dealing with approved price lists and the provisions of Rules 173C and 173B are analogous. The Hon ble Supreme Court in the case of CCE Kanpur Vs Flock (India) Pvt. Ltd. 2000 (120) ELT 285 (SC) held as under :- 8. From the aforementioned provisions o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... comes due to any person, the proper officer, may refund, the amount to such person without his having to make any claim in that behalf. The provision indicates the importance attached to an order of the appellate or revisional authority under the Act therefore, an order which is appealable under the Act is not challenged then the order is not liable to be questioned and the matter is not to be reopened in a proceeding for refund which if we may term it so is in the nature of execution of a decree/order. 7. On perusal of the aforesaid decisions of the Hon ble Supreme Court it is settled that the levy of excise duty on the basis of an approved classification list is a correct levy at least until such time as to the correctness of the approval is questioned. In the present case, the appellants did not challenge the classification list at any point of time. It may be noted that the appellant filed under protest letter on 7.1.1987. But, it is undisputed fact that after two days they filed six nos. classification lists time to time classifying the goods classifiable under heading No.87.04. Thus, the under protest letter has no effect in the eye of law. 7.1 The Ld. Advocate relied ..... X X X X Extracts X X X X X X X X Extracts X X X X
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