2004 (1) TMI 79 - SC - Central Excise

Refund claim - Held that - The show cause notice issued by the Assistant Collector demanding reclassification was in relation to the past clearances and when the appellants succeeded in the reclassification dispute before the Collector (Appeals) on 30th June, 1988, the appellants were entitled to refund of the differential amount of Rs. 13,18,184.88 under Section 11B(3) of the Act. It is not in dispute that cases falling under Section 11B(3) refer to consequential relief which an assessee is entitled to on his succeeding in appeal/revision. In the present case the appellants have succeeded before the Collector (Appeals) on 30th June, 1988 and consequently the appellants herein were entitled to refund under Section 11B(3) of the Central Excise & Salt Act, 1944. Therefore, on facts of this case we are not required to examine the aforestated larger question arising in the matter since the appellants are entitled to relief under Section 11B(3) of the said Act of 1944. In favour of assessee.

Summary

Issues:
1. Whether the duty was paid under protest.
2. Whether compliance with Rule 233B is a condition precedent to the proviso to Section 11B(1) of the Central Excises & Salt Act, 1944.

Analysis:

1. Issue 1 - Payment under Protest:
The case involved a dispute regarding the payment of a differential duty by the appellants for the period 1-3-86 to 31-10-86. The appellants contended that they paid the duty under protest as they believed their product was subject to a lower duty rate. The Assistant Collector demanded the differential duty, which the appellants paid on 6-4-87 with an endorsement on the challan stating it was paid under protest. The appellants also filed a protest letter after the payment. The Tribunal denied the refund, stating that the payment was not made under legal compulsion. However, the Supreme Court held that the appellants were entitled to a refund under Section 11B(3) as they succeeded in the reclassification dispute before the Collector (Appeals). The Court emphasized that the appellants were entitled to the refund based on their success in the appeal, regardless of the compliance with Rule 233B.

2. Issue 2 - Compliance with Rule 233B:
The Tribunal relied on Rule 233B to determine if the payment was made under protest. The rule requires the delivery of a letter to the competent authority giving grounds for payment under protest, with an endorsement on copies of gate passes and RT 12 forms. The Department argued that Rule 233B was not complied with as the payment was made before the protest letter. The Court noted that Rule 233B(4) regarding endorsements on gate passes and returns was not applicable to past clearances. The Court further clarified that compliance with Rule 233B was not necessary for cases falling under Section 11B(3) of the Act, where a refund becomes due to a person as a result of an order passed in appeal or revision. The Court concluded that the appellants were entitled to the refund under Section 11B(3) and allowed the appeal, directing the Department to refund the amount with interest.

In conclusion, the Supreme Court allowed the appeal, setting aside the Tribunal's decision and directing the Department to refund the appellants the claimed amount with interest. The Court clarified that compliance with Rule 233B was not necessary in this case, as the appellants were entitled to the refund under Section 11B(3) based on their success in the reclassification dispute.