1983 (5) TMI 130 - AT - Central Excise

Summary

Issues:
Claim for refund of excise duty paid under protest; Application of Rule 11 and Rule 173J of Central Excise Rules, 1944; Time limitation for claiming refund; Precedents on payment under protest.

Analysis:
The case involves a revision application to the Government of India under Section 35P(2) of the Central Excises and Salt Act, 1944, treated as an appeal before the Tribunal. The appellants, manufacturers of fertilizers, stored bulk fertilizers on 28-2-1969, paying excise duty under protest upon advice from Fertilizers Association of India. Subsequently, they requested a refund after a Madras High Court judgment clarified that packing is not considered manufacturing. The refund claim was rejected by the Assistant Collector and the Appellate Collector, citing limitation under Rule 11 and Rule 173J of the Central Excise Rules, 1944. The key issue is whether the appellants' claim for refund can be rejected as time-barred.

During the hearing, it was established that the appellants paid duty under protest and registered their claim for refund within the limitation period. The Department argued that as there was no provision for payment under protest at that time, the limitation rules should apply. However, the appellants relied on precedents like Andhra Fertilisers Ltd. and Patel India (P) Ltd., emphasizing that the payment was made under protest and not voluntarily. The Tribunal noted that the appellants' claim was rejected solely on the grounds of limitation by the Appellate Collector.

The Tribunal found that the appellants' claim should be allowed for two reasons: firstly, they clearly stated their protest and claim for refund before the limitation period expired, and secondly, based on relevant judgments and circumstances, the claim should not be time-barred under Rule 11 and Rule 173J. The Tribunal set aside the Appellate Collector's order, directing the Department to make a refund to the appellants within two months. The decision highlights the importance of timely refund claims and the validity of claims made under protest, even in the absence of specific provisions for such payments in the rules at the time.