2003 (10) TMI 429 - AT - Central Excise

Summary

Issues Involved:
1. Claim for refund of duty paid.
2. Rejection of refund claim on grounds of time-bar.
3. Consideration of duty payment under protest.
4. Compliance with Rule 233B for duty payment under protest.

Issue-wise Detailed Analysis:

1. Claim for Refund of Duty Paid:
The appellants, engaged in manufacturing excisable goods from 1-4-92 to 12-5-94, paid duty on yarn used in exported fabrics. They applied for 100% E.O.U. status, granted on 13-5-94, entitling them to exemption under Notification No. 123/81. They claimed a refund for the duty paid during the period before receiving the 100% E.O.U. status, initially applying on 3-8-94, later refiled on 28-3-95.

2. Rejection of Refund Claim on Grounds of Time-bar:
The authorities issued a show cause notice proposing denial of the refund claim due to time-bar, adjudicated by the Assistant Commissioner, who rejected the claim based on the filing date of 28-3-95. The Commissioner (Appeals) considered the initial application date of 3-8-94 but still found the claim beyond the six-month limitation period, upholding the original order.

3. Consideration of Duty Payment Under Protest:
The appellants argued that the duty should be considered paid under protest due to their continuous correspondence with the Department regarding their 100% E.O.U. registration. However, the Tribunal found no explicit indication in the letters that the duty was paid under protest. The appellants relied on various judicial decisions to support their claim, but the Tribunal did not find these applicable as the correspondence lacked any assertion of protest.

4. Compliance with Rule 233B for Duty Payment Under Protest:
The Tribunal emphasized the necessity of following Rule 233B, which outlines the procedure for paying duty under protest, including delivering a protest letter and marking duty documents accordingly. The appellants did not comply with these requirements, and the Tribunal cited several cases where the courts extended benefits even with some deviation from Rule 233B, but only when the intention to pay under protest was clear. In this case, the Tribunal found no such intention.

Separate Judgment Analysis:
Order per Gowri Shankar, Member (T):
Gowri Shankar disagreed with the view that non-compliance with Rule 233B precludes duty payment under protest. He cited the Supreme Court's judgment in Mafatlal Industries, emphasizing that the rule's purpose is to keep a record of protest payments and prevent disputes. He argued that clear communication or conduct disputing duty payment suffices for protest, but agreed that the appellants' correspondence did not indicate such an intention.

Conclusion:
The appeal was dismissed as the appellants failed to establish that the duty was paid under protest, and the refund claims were barred by limitation.