1990 (2) TMI 186 - AT - Central Excise

Summary

Issues:
Departmental appeal against Collector (Appeals) order, application of Rule 233(b) on refund claim, time bar for refund claim, necessity of filing refund claim, procedural requirements for refund claim.

Analysis:
The case involves a departmental appeal against the order of the Collector (Appeals) regarding a refund claim. The dispute centers around the application of Rule 233(b) and the time bar for the refund claim. The respondents, engaged in balancing/testing instruments, argued they were not liable to pay duty. The Asstt. Collector allowed a partial refund but rejected the remaining amount as time-barred due to non-compliance with Rule 233(b) requirements.

The respondents contended that their protest letter, lodged before Rule 233(b) came into force, should be considered valid. They argued that the endorsement of gate passes with 'under protest' was not mandatory, citing precedents. They also highlighted an inspector's advice against using 'under protest' on gate passes. The Collector (Appeals) confirmed the Asstt. Collector's decision, noting the acceptance of the protest letter before the rule's enforcement.

The Tribunal found merit in the respondents' submissions, deeming Rule 233(b) provisions as directory. It acknowledged the protest letter lodged before the rule's introduction and its acceptance by the Asstt. Collector. The Tribunal noted the lack of contradiction regarding the inspector's advice. The Collector (Appeals) accepted the respondents' plea, rejecting the time bar claim and modifying the Asstt. Collector's order due to insufficient document production.

Considering the circumstances and the department's acknowledgment that the amount was not owed to the government, the Tribunal decided to remand the case to the Asstt. Collector for a fresh assessment. The Asstt. Collector was directed to allow the respondents an opportunity to present evidence and consider the refund claim based on the available records. The Tribunal upheld the Collector (Appeals) order on the time bar issue but set aside the rejection of the appeal, granting a chance for a de novo consideration of the refund claim.