TMI Blog1985 (5) TMI 57X X X X Extracts X X X X X X X X Extracts X X X X ..... al times under Item No. 1-D of the First Schedule to the Act, 20% ad valorem during the financial year 1973-74 and 20% ad valorem plus 50% thereof as auxiliary excise duty during financial years 1974-75 and 1975-76. On or about 18-6-1977, the respondent filed a claim for refund of Rs. 10,77,987.70, claimed to be the amount of Central Excise duty paid in excess during the period between 18-3-1976 and 16-6-1977. In the said refund application, the respondent had contended that aerated waters is classifiable under Item 1-D(2) of the First Schedule to the Act, rather than under 1-D(1)(a) thereof. Agreeing with the aforesaid contention of the respondent, it was ultimately held by the Government of India, on 26th September 1980, in revision, that the respondent was entitled to the refund of duty paid in excess upto a period of one year prior to the date of filing the application for refund, while rejecting the claim for the anterior period. Accordingly, the refund came to be made in respect of the excess payment for the period of one year prior to the date of the claim for refund. Thereafter, the respondent applied on 23-12-1980, for refund of Rs. 13,96,582.23 p. for the period between 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4. It is significant to note that the questions referred to this Court proceed on the basis that the old Section 11 of the Act is not applicable and only Section 11-B of the Act is applicable to the facts of this case. Therefore, it is not possible to go into the question as to whether Section 11 of the Act (which did not provide any saving clause in case of payment under protest is applicable to the case or not. When the matter was taken up for hearing, the learned Counsel for the respondent submitted that the questions referred to this Court are questions of fact and that as Section 35-G of the Act contemplates a reference only on questions of law, the reference itself is incompetent. This is countered by the learned Counsel appearing for the Revenue, on the ground that the question whether the payment was under protest depends upon the construction of certain letters emanating from the respondent and that it is well established that construction of a document is a question of law, and therefore, the reference should be held to be competent. The preliminary question that has to be considered is as to whether the questions referred to this Court are questions of law as contended ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in relation to the period between 6-2-1973 and 17-3-1976. On 2-2-1973, the respondent has sent a letter to the Superintendent of Central Excise to the following effect: "With reference to your approval of our Price List dated 2nd February 1973, we like to inform you that we have included the freight charges in the price list and are paying the duty under protest, reserving our rights to go on appeal." Later, on 14-3-1973, another letter has been addressed by the respondent to the Superintendent of Central Excise, to the following effect : "We refer to our letter of 2nd February 1973. Further, to the discussion we had with you and as suggested by you, we are affixing a separate seal for the duty paid under protest, reserving our rights or claim for the excess amount of duty paid by us in any manner." We have to see that under what circumstances, the above two letters came to be written by the respondent. 7. According to the respondent, it came to know from the filing of a writ petition before Bombay High Court and therefore, it chose to make the payment towards the excise duty under protest. However, we find that the original case put forward by the respondent was that i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sification of the goods and grant of consequential refund of duty." "4.3. This difference in describing the raw material i.e., the flavouring essence has been made by all manufacturers who use flavouring essence and not blended flavouring essence in the manufacture of aerated waters. After the judicial pronouncement in Dukes case, that Essences are distinct from Concentrates, the appellants became aware of the inadvertence and misconstruction in the description of their goods and approached the Central Excise Officer for re-classification of the goods and refund of duty not due." These passages also indicate that the respondent could not have raised any protest as regards the classification. Further, their price list submitted for approval by the respondent to the Central Excise authority in the year 1973, which has been enclosed along with the letter dated 2-2-1973 indicates that the assessee could have raised protest only as regards the inclusion of freight charges in the sale price. That price list contains the following writing in manuscript : "The above prices are inclusive of freight charges" which indicates that while the respondent sought exclusion of the freight ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay proceeded to say- "We have heard both the parties. We agree with Shri Sarvanai that letter dated 14-3-1973, sent by the respondent to the Excise authorities was clearly to safeguard their interest by way of a protest with regard to the classification aspect in this case. The language of the letter and its contents are absolutely clear and do not admit of any ambiguity with regard to their legal content or meaning." We are not in a position to agree with the Tribunal on this aspect of the matter. For one thing, there is no discussion by the Tribunal as to how it considered the letter dated 14-3-1973, as including a protest with regard to the classification. On the date when the letter dated 14-3-1973 was sent by the "respondent to the Superintendent of Central Excise, both parties proceeded on the basis that the goods manufactured came under Tariff Item 1-D(i)(a) and it is only after the Bombay High Court held that it will come under Tariff Item 1-D(2) and therefore chargeable at 10% ad valorem, the respondent would have been aware of the mistaken classification. In the year 1973, the respondent could not have raised a protest in the classification as at that time the classif ..... X X X X Extracts X X X X X X X X Extracts X X X X
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