1996 (9) TMI 248 - AT - Central Excise

Summary

Issues:
- Refund claims based on favorable order of Commissioner (Appeals)
- Rejection of refund claims by Assistant Commissioner on grounds of time bar and lack of supporting documents
- Compliance with Rule 233B regarding payment of duty under protest
- Applicability of case law in similar situations
- Admissibility of refund claims based on appellate orders in favor of the assessee

Analysis:
The case involves an appeal against an order passed by the Commissioner of Central Excise (Appeals), New Delhi, regarding refund claims filed by the appellants for two specific periods. The appellants claimed the refund based on a favorable order by the Commissioner (Appeals) dated 31-12-1990. The jurisdictional Assistant Commissioner rejected the refund claims citing non-compliance with Rule 233B of CESA, as the appellants failed to produce a copy of the protest letter supporting their claim. The rejection was upheld in the impugned order by the Commissioner (Appeals).

Upon hearing the arguments, the Tribunal considered the submissions and found that the appellants had paid duty at a higher rate under protest following the decision of their appeal with the Collector (Appeals) against a previous order. The Tribunal noted that although there was no formal protest letter, the appellants had endorsed gate passes for clearances and RT 12 returns under protest, indicating substantial compliance with Rule 233B. The Tribunal referred to case law, including the decisions in Mahalaxmi Industries v. Commissioner of Central Excise and Commissioner of Central Excise v. Eskay Industries, to support the view that payment of duty under protest can be inferred from such endorsements.

In light of the case law and the circumstances of the case, the Tribunal held that the rejection of the refund claims by the lower authority was not sustainable. The Tribunal concluded that the payment of duty during the relevant period should be construed as payment under protest. Accordingly, the appeal was disposed of by setting aside the impugned order and directing the grant of refund, subject to the jurisdictional Assistant Commissioner verifying the endorsements of payment of duty under protest on the relevant documents. The Tribunal emphasized the need for compliance with Section 11B in its amended form for the grant of refund.