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TMI Blog2004 (1) TMI 79X X X X Extracts X X X X X X X X Extracts X X X X ..... period 1-3-1986 to 31-10-1986 came to be dismissed on the ground that it was paid voluntarily and suo motu and that the alleged protest was not in terms of Rule 233B of Central Excise Rules, 1944. 2.Appellants manufacture "Vulcanising Solution" at their factory in Madras. On 3rd March, 1986, appellants filed the classification list under sub-heading 4006.90 carrying rate of duty at 15%. The said list was approved on 10-7-86. Appellants paid the duty at 15% accordingly from 1-3-86 onwards. However, on 28-10-86 the Assistant Collector visited the appellant's factory and directed the appellants to give a revised classification list for the aforestated product under sub-heading 4005.00 carrying the rate of 40% ad valorem and further directed t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s they preferred 3 refund claims for the excise duty paid and the Assistant Collector while permitting refund of the differential duty paid by the appellants in Rs. 25,61,792/- for the period 1-11-86 to 30-9-87 and further sum of Rs. 10,78,485.76 for the period 1-2-88 to 20-7-88 rejected claim for refund for Rs. 13,18,184.88 for the period 1-3-86 to 31-10-86 on the ground that duty was not paid under protest in terms of Rule 233B of Central Excise Rules, 1944. The appeals preferred by the appellants were dismissed by the Collector (Appeals) and by the majority view of Central Excise & Gold (Control) Appellate Tribunal (in short 'CEGAT'). Hence the appellants have come by way of appeal under Section 35L of the Central Excise Act, 1944. 3.Mr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... set aside and the case of the appellants that their product was subject to levy of duty @ 15% ad valorem was accepted by the appellate authority. It was argued that once the matter was resolved in favour of the appellants, their claim for refund for the period in question should have been allowed without applying the limitation of 6 months as the duty was paid under protest. It was argued that in the facts and circumstances of this case Rule 233B was not applicable as the said Rule contemplates that where the assessee wants to pay the duty under protest, he shall deliver a letter to the competent authority giving grounds for payment of duty under protest and once the said letter was acknowledged, it constituted a proof that the assessee had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proviso to Section 11B(1). He submitted that on their own showing the appellant applied for refund of differential duty for the period 1-3-86 to 31-10-86 vide refund application dated 10th August, 1988 purporting to comply with Rule 233B. He contended that in this case Rule 233B has not been complied with by the appellants as the payment was made on 6-4-87 for the period 1-3-86 to 31-10-86 whereas Rule 233B required payment of duty preceded by a letter of protest. It was pointed out that in the present case payment was made on 6th April, 1987 and it was not preceded by protest letter. That on the contrary the letter of protest was lodged after payment on 6-4-87, hence there was non-compliance of Rule 233B(1). That on the date of payment the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 11B(1) which proviso would stand attracted only if the appellant satisfies the provisions of Rule 233B. That the said Rule was applicable only to concurrent and future clearances and not to past clearances and hence Rule 233B was not applicable and therefore the Assistant Collector was right in rejecting the claim of the appellant as not maintainable. 5.In rejoinder, learned Counsel for the appellants raised an alternative contention, which in our view, merits acceptance. It was argued that ultimately in the classification dispute, the appellant-assessee has succeeded and the case of the appellant has been accepted by the appellate authority and duty has been levied @ 15% as contended by the appellant. It was argued that under the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st payment the conditions and circumstances mentioned in Rule 233B should be complied with, otherwise there could be no protest payment under the Act. On this reasoning the Tribunal denied refund to the appellants. However, there was one more reason for denying the refund. According to the Tribunal the differential payment was not the result of demand or legal compulsion. 9.In our view the decision on the larger issue of compliance of Rule 233B as condition precedent to the applicability of the proviso to Section 11B(1) need not be gone into as the appellants are entitled to relief of refund on the facts of this case in terms of Section 11B(3) which reads as follows :- Where as a result of any order passed in"(3) appeal or revision under ..... X X X X Extracts X X X X X X X X Extracts X X X X
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