1998 (7) TMI 585 - AT - Central Excise

Summary

Issues:
1. Refund of duty paid in excess by the appellants during March and April 1993.
2. Classification dispute regarding rubber blocks under TSH 4008.29 or TH 40.16.
3. Interpretation of the statement by the Director of the appellant firm as a protest under Rule 233B.
4. Bar on refund claim due to delay in filing after the approval of classification lists.

Analysis:
1. The issue in this case pertains to the refund of duty overpaid by the appellants in March and April 1993 amounting to Rs. 8,37,112. Despite the absence of representation from the appellants, the learned JDR for the Revenue presented the case. The dispute revolves around the classification of rubber blocks under TSH 4008.29 or TH 40.16.

2. The appellant initially claimed classification under TSH 4008.29 attracting nil duty rate, while the department leaned towards TH 40.16. The Director of the appellant firm provided a statement indicating willingness to clear goods pending classification approval, implying payment of duty under protest if required. However, the lower authorities found this statement insufficient as a formal protest under Rule 233B, emphasizing the absence of a clear declaration to pay duty under protest.

3. The presiding judge disagreed with the Revenue's stance, asserting that the Director's statement was unambiguous and constituted a valid protest under Rule 233B. The statement clearly outlined the intention to clear goods subject to pending approval and pay duty under protest if necessary, indicating a categorical protest in compliance with the rule.

4. Despite recognizing the validity of the protest, the judge acknowledged the Revenue's argument regarding the time limit for filing a refund claim. The classification lists were approved on 25-1-94 at nil duty rate, marking the cessation of any ongoing protest. Consequently, the appellants were required to file the refund claim within six months from the approval date. However, the appellants submitted the claim on 21-5-96, significantly exceeding the stipulated six-month period, rendering the refund claim time-barred.

In conclusion, the appellate tribunal dismissed the appeal of the appellant due to the delay in filing the refund claim beyond the prescribed time limit, despite acknowledging the validity of the initial protest regarding duty classification.