TMI Blog2004 (1) TMI 143X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 and the same was beyond the period of limitation under Section 11B of the Central Excise Act. The second claim for Rs. 12,355/- paid for the month of July, 2002 was filed on 10-10-2002 and the same was within time. The jurisdictional Deputy Commissioner rejected both the claims, the first claim as barred by both limitation and unjust enrichment and the second as barred by unjust enrichment. The appeals preferred to the Commissioner (Appeals) against the orders of adjudication on the refund claims did not succeed. Hence the present appeals of M/s. Gujarat State Fertilizers and Chemicals Ltd. Appeal No. 2504 pertains to the refund claim of Rs. 1,21,871/- and Appeal No. 2496 to the claim of Rs. 12,355/-. 2. We have heard Consultant for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o law. All that the proper officer is empowered to do is to acknowledge the letter of protest when delivered to him - and that acknowledgement shall be the proof that the duty has been paid under protest. A reading of the Rule shows that the procedure prescribed therein is evolved only with a view to keep a record of the payment of duty under protest. It is meant to obviate any dispute whether the payment is made under protest or not. Any person paying the duty under protest has to follow the procedure prescribed by the Rule and once he does so, it shall be taken that he has paid the duty under protest. The period of limitation of six months will then have no application to him.' We may also reproduce para 86 of the aforesaid judgment :- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rotest". Therefore, we are inclined to accept the learned DR's arguments based on para 85 of the judgment in Mafatlal Industries (supra). The duty cannot be said to have been paid under protest within the meaning of this expression under Section 11B of the Act and, therefore, the claim for refund of Rs. 1,21,871/- was time-barred. 3. It has been argued by the learned Consultant that, as the duty was paid "under protest", the bar of unjust enrichment was not applicable to the refund claims. He has, in this connection, relied on the Supreme Court's decisions in the cases of Sinkhai Synthetics Chemicals Pvt. Ltd. v. C.C.E. [2002 (143) E.L.T 17 (S.C.)] and Hindustan Metal Pressing Works v. C.C.E. [2003 (153) E.L.T. 11 (S.C.) = 2003 (55) RLT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng Works when it interprets the earlier judgment Sinkhai Synthetics Chemicals (P) Ltd. At the same time, the departmental representative brings to our notice the judgment of the Supreme Court in Collector v. Citurgia Biochemicals Ltd. - 1998 (101) E.L.T. 568. In this judgment, the two judge bench of the Supreme Court confirmed the view of the Tribunal impugned in the appeal before it that the payment of duty by the assessee for part of the period in question was under protest, hence not barred by limitation. It said, "the claim shall be dealt with in accordance with law declared in Mafatlal Industries". For another part of the period too, it said, "if the payment was determined to have been paid under protest, it shall be governed by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ition, the majority court held extensively as that produced in Paragraphs 83 and 84 in relation to the contentions raised by the counsel before it as to payment of duty under protest. If the court had intended to say that duty paid under protest would not be subject to the provisions of Section 11B(2), there was no requirement for it to go into an exhaustive discussion of the aspects." "6. We are therefore, of the view that it is clear that the Constitution Bench which decided in Mafatlal Industries Ltd. specifically laid down that even in the case of duty paid under protest, the requirement under sub-section (2) of Section 11B will apply. Respectfully, following this judgment, we are unable to accept the contention of the appellant to th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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