TMI Blog2015 (7) TMI 958X X X X Extracts X X X X X X X X Extracts X X X X ..... the provisional assessment to duty under Rule 9B of the Rules till the case was finally decided. Appellant had established beyond doubt that the appellant had always been contesting the department's claim for levying duty on the product manufactured by them and regularly agitated that no such duty was payable. In our view, if the appellant was disputing the levy of duty and was agitating that no duty was payable and that payment was being made because of insistence of the department to pay under threat of seizure of the product, it cannot be said that payments made by the appellant was not made under protest. We are of the opinion that the assessee had lodged the protest in accordance with Section 11B of the Act read with Rule 233B of the Rules of 1994. - Tribunal and the departmental authorities have committed a manifest error in non-suiting the appellant's application for refund on the ground that no protest letter was filed in accordance with the procedure prescribed under Rule 233B of the Rules. Since we have held that the protest letter was filed by the appellant, the question of the application being barred by limitation under Section 11-B of the Act does not arise. - Matt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubmitting the declaration of goods under Rule 173B of the Rules under protest. The letter was accompanied by the said declaration form, which was duly received by the Assistant Commissioner. For facility, the letter dated 24th December, 1996 issued by the petitioner to the Assistant Commissioner, Moradabad is extracted hereunder in extenso: From: DENAJE SANSTHAN 39, Malviya Nagar, Moradabad. To The Assistant Commissioner, Central Excise Division, Moradabad. Through: The Superintendent, Central Excise Range-2, Moradabad. Dear Sir, We have been granted Registration Certificate No.2806023250-A-1/Ch33/01/96 dt. 13.12.1996 under Rule 174 of Central Excise Rule, 1944 with reference to our application dated 13/14.11.1996, which was submitted for the purpose of carrying on our business stopped suddenly by effecting seizure on 19.9.1996 by Central Preventive Staff of Moradabad of our stock of Shampoo (Satritha, Neem and Herbal Types) manufactured out of raw materials of Sikakai, Amla Ritha without use of power or machines. The applicant is a Registered Charitable Society under the Societies Registration Act and has also been registered with U.P. Khadi Gramud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... their customers and, therefore, it was a case of unjust enrichment and that the appellant was not entitled for any refund. The authority consequently, directed the appellant to show cause as to why the claim of refund should not be rejected under Section 11B and 11D of the Central Excise Act, 1944 (hereinafter referred to as the Act). The appellant replied to the show cause notice explaining that they have not recovered the duty from their buyers. In support of their submission, the appellant filed proof indicating that duty was paid by them under protest. The Deputy Commissioner passed an order in original dated 5th December, 2000 rejecting the claim of the appellant for refund on the ground that the claim was barred by limitation as well as it was a case of unjust enrichment. The appellant, being aggrieved, preferred an appeal before the Commissioner (Appeals), who rejected the appeal by an order dated 27th May, 2004 on the ground that the appellant had not followed the procedure as prescribed under Rule 233B of the Rules nor had intimated the department about their intention to do so. The appellant, being still aggrieved, filed an appeal before the Central Excise and Service ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n their 173-B declaration dt.31.12.1996 and nor in their letter dt.24.12.96. The Commissioner (Appeals) rejected the appeal holding:- The appellant's plea is that the duty was paid under protest the refund is not time bar. I have perused the letter dated 24.12.96 which they stated was given to the department intimating payments under protest. A perusal of the letter shows that they have requested the department for provisional assessment under Rule 9B as they do not agree with the classification of the product and had filed a writ in the Hon'ble High Court of Allahabad. This letter no where states that as they were denied the SSI exemption they are paying duty under protest, a plea they have taken in the appeal before me. They did shown me RT-12's etc. stamped with the paid under protest but this does not fulfill the requirements of Rule 233B of the Central Excise Rules. They have to inform the department in writing that they intend to pay duty under protest and the grounds for doing so. Apparently they have not done so. The Hon'ble Supreme Court in the case of Mafat Lal Industries Vs. UOI reported in (1997 (89) ELT 24) had stated. A reading of the rule ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sistant Commissioner of Central Excise or Deputy Commissioner of Central Excise before the expiry of one year from the relevant date in such form and manner as may be prescribed and the application shall be accompanied by such documentary or other evidence including the documents referred to in section 12A as the applicant may furnish to establish that the amount of duty of excise and interest, if any, paid on such duty in relation to which such refund is claimed was collected from or paid by him and the incidence of such duty and interest if any, paid on such duty had not been passed on by him to any other person. Provided ............ Provided further that the limitation of six months shall not apply where any duty has been paid under protest. A perusal of the aforesaid provision indicates that any person claiming refund may make an application for refund before the expiry of six months from the relevant date, in such form and manner as may be prescribed and that the application shall be accompanied by such documentary or other evidence to establish that the amount of duty was collected and paid by the appellant and had not been paid by him to any other person. The seco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A perusal of the aforesaid rule indicates that where an assessee desires to pay duty under protest, he shall deliver to the proper officer a letter to this effect. No format of the letter has been prescribed and, therefore, the format of the letter has been left to the assessee. According to the appellant, a protest letter had been given and, therefore, they had complied with the necessary requirement as stipulated under Rule 233B of the Rules. On the other hand, the stand of the revenue is that the appellant has not followed the requirement of law as prescribed under Rule 233B of the Rules and, therefore, they are not entitled to claim any refund. According to the revenue, the letter and the declaration form submitted by the appellant does not amount to lodging a protest nor does it mean that the procedure prescribed under Rule 233B had been followed. The contention of the revenue is that it cannot be said that the appellant had made the payment of duty under protest after following the procedure prescribed by the Rules. Having heard the learned counsel for the parties, we find that in Mafatlal Industries Ltd. Vs. Union of India, 1997 (89) ELT 247 SC, the Constitution Bench ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in our opinion that is the substantive protest in writing. Further observed:- 14. In our opinion Rule 233B cannot control the full effect of the proviso to Section 11B(1). A rule made under the Act cannot limit a provision in the Act itself. It is well settled that a rule made under an Act will not be valid if it conflicts with or is in derogation to a section in the Act vide [C.I.T. Vs. S. Chinappa Mudaliar, AIR 1969 SC 1068]. Hence, a rule should not be construed in a manner that it conflicts with a Section of the Act. In Indian Piston Ltd. Vs. Collector of Central Excise, Madras, 1990 (46) ELT 3, the Madras High Court held : 10. Mr. Ganguly next drew our attention to Rule 233-B of the Central Excises Rules, 1944 which lays down the procedure to be followed when duty is paid under protest. The provisions of this rule, however, are of no relevance here because it has not been pointed out to us as to how the appellant has failed to observe this rule in any particular regard so that the provisions of clause 8 of the rule can come into effect. This rule does not prescribe any particular form of protest and hence it is not possible to say on the basis of this rule tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ral in nature and cannot override or control the substantive provision of Section 11-B(1) of the Act since no specific form of protest or format has been provided under the Rules. The appellant in its letter and in the declaration form had recorded his dissent and objection to the levy of duty, which in our opinion was sufficient to term it as depositing the duty under protest. In view of the aforesaid, we find that the Tribunal and the departmental authorities have committed a manifest error in non-suiting the appellant's application for refund on the ground that no protest letter was filed in accordance with the procedure prescribed under Rule 233B of the Rules. Since we have held that the protest letter was filed by the appellant, the question of the application being barred by limitation under Section 11-B of the Act does not arise. In the light of the aforesaid, the question of law as framed above is answered in favour of the appellant and against the department. The impugned orders of the Tribunal as well as the order of the Deputy Commissioner and the Commissioner of Appeals are quashed. The appeal is allowed. The matter is remanded to the competent authority to de ..... X X X X Extracts X X X X X X X X Extracts X X X X
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