2002 (2) TMI 708 - AT - Central Excise

Summary

Issues:
1. Question of refund regarding the mixing of phenol formaldehyde and melamine formaldehyde to produce resins under Central Excise Act.
2. Applicability of time limit under Section 11B of the Central Excise Act for refund claims.
3. Consideration of protest against payment in the context of challenging demands through appeals.
4. Compliance with Rule 233B of the Central Excise Rules in the absence of a separate protest letter.
5. Setting aside the impugned order and allowing the appeal without addressing the issue of unjust enrichment.

Issue 1 - Refund for resin production:
The appeal before the Appellate Tribunal CEGAT, Mumbai concerned a question of refund related to the production of resins by mixing phenol formaldehyde and melamine formaldehyde under the Central Excise Act. The appellant's case was supported by a judgment of the Supreme Court in a related matter, establishing that the mixing process did not amount to manufacturing and the resulting product was marketable.

Issue 2 - Applicability of Section 11B time limit:
The key issue was whether the time limit prescribed under Section 11B of the Central Excise Act would be applicable to the refund claim. The appellant had paid an amount before the department following a Supreme Court order, but the refund claim was dismissed by lower authorities due to the absence of a protest against the payment. The Tribunal held that the time limit under Section 11B was not applicable since the Tribunal's order was challenged in appeal, making a separate protest letter unnecessary.

Issue 3 - Protest against payment in appeals:
The Tribunal referred to a previous case where it was established that challenging a demand through an appeal could be considered a form of protest against the payment. The Tribunal emphasized that when an amount is paid to fulfill statutory obligations for an appeal, it should not be seen as a voluntary payment, and the need for a separate protest letter is obviated.

Issue 4 - Compliance with Rule 233B without protest letter:
Relying on judgments and precedents, the Tribunal concluded that challenging a matter before the Supreme Court effectively fulfilled the spirit of Rule 233B of the Central Excise Rules, rendering the filing of a separate protest letter redundant. The Tribunal highlighted the Supreme Court's stance on payments made under court orders pending appeals, emphasizing that such payments are inherently made under protest.

Issue 5 - Setting aside the impugned order:
Ultimately, the Tribunal set aside the impugned order and allowed the appeal without addressing the issue of unjust enrichment. The decision focused on the procedural aspects related to the refund claim and the challenge to the Tribunal's order, rather than delving into the issue of unjust enrichment, which was not the subject under consideration.

In conclusion, the Tribunal's judgment revolved around the refund claim, the applicability of time limits, the concept of protest against payment in appeals, compliance with relevant rules, and the ultimate decision to set aside the order and allow the appeal without addressing unjust enrichment.