2002 (10) TMI 150 - AT - Central Excise

Summary

Issues:
Claim for refund of duty rejected by Commissioner (Appeals) - Compliance with Rule 233B of Central Excise Rules, 1944 - Time-limit under Section 11B of Central Excise Act.

Analysis:
The appeal was filed by M/s. NEPA Ltd. against the rejection of their claim for refund of duty in the Order-in-Appeal. The company manufactures newsprint paper and wrapping paper, with the latter being used to wrap the newsprint rolls. A dispute arose regarding the quantity of wrapping paper required due to technological advancements, leading to excess duty payment. The Assistant Commissioner demanded duty on the extra amount realized as per the formula, which was paid under protest by the appellants. The Commissioner (Appeals) allowed the appeal, but the refund claim was rejected for not following Rule 233B and exceeding the time-limit under Section 11B.

The appellant's advocate argued that the duty payment was made under protest, as evidenced by their letter and TR 6 challans. Referring to a Supreme Court case, it was highlighted that Rule 233B does not require a specific form of protest and that the duty was paid under protest despite not explicitly mentioning it in the prescribed manner. The Revenue reiterated the findings of the adjudication order and the impugned Order.

The Tribunal considered both sides' submissions and noted that the claim for refund arose from the appeal against the demand of duty, allowed by the Collector (Appeals) without any appeal from the Revenue. It was acknowledged that the duty was deposited under protest following the adjudication order, and the appeal against it was filed. The Tribunal held that the requirements of Rule 233B had been met as the appeal itself constituted a form of protest. Therefore, the refund claim could not be rejected on the grounds of non-compliance with Rule 233B. The Tribunal concluded that since the appellate authority set aside the adjudication order, the duty deposited by the assessee was refundable, making the refund admissible to the appellants. Consequently, the appeal was allowed in favor of M/s. NEPA Ltd.