1993 (6) TMI 167 - AT - Central Excise

Summary

Issues:
1. Refund claim rejection based on duty payment under protest.
2. Interpretation of Section 11B(3) of the Central Excises & Salt Act.
3. Locus standi for claiming refund based on appellate order.
4. Compliance with Rule 233B for payment of duty under protest.
5. Consideration of refund claim on merits within the permissible period.

Analysis:
The appeal before the Appellate Tribunal CEGAT, CALCUTTA involved the rejection of a refund claim by M/s. Sirdar Carbonic Gas Co. Ltd. The dispute arose from the payment of duty under protest for carbon dioxide gas supplied to a customer, following a show cause notice issued by the Department. The Assistant Collector rejected their refund claim, stating that the duty payment was not under protest as per Rule 233B of the Central Excise Rules. The Collector of Central Excise (Appeals) also upheld this decision, leading to the present appeal.

The main contention was whether the refund claim should be admissible based on the payment of duty under protest and the applicability of Section 11B(3) of the Act. The appellants argued that the refund claim arising from a previous appellate order should accrue to them automatically, as they had paid duty under protest. They emphasized that the time limit specified in Section 11B should not apply in their case, as they had filed a letter of protest in due time.

The Tribunal considered the submissions and upheld the decision that the consequential refund from the previous appellate order would only benefit the appellants who filed the appeal. The Tribunal noted that the appellants' letter of protest did not necessarily mean all payments were made under protest, as they did not follow Rule 233B requirements for payment under protest. However, the Tribunal acknowledged that the previous appellate order supported the appellants' case on merits, as their customers were held eligible for duty-free supplies of carbon dioxide.

The Tribunal partially allowed the appeal, directing the Assistant Collector to consider the refund claim on merits for the period within the permissible six months. The Tribunal rejected the argument that this consideration was a new claim, emphasizing that the claim had to be evaluated based on the provisions of Section 11B and unjust enrichment principles.

In conclusion, the Tribunal clarified the applicability of Section 11B, the importance of complying with procedural requirements for duty payment under protest, and the need to evaluate refund claims on their merits within the specified period.