1996 (9) TMI 337 - AT - Central Excise

Summary

Issues:
Classification of railway or tram way track construction materials under Central Excise Tariff.
Proper procedure for payment of duty under protest.
Failure to file an appeal against the order approving the classification list.

Classification Issue:
The dispute in this case revolves around the classification of railway or tram way track construction materials such as rail clips, modified loose jaws, rail anchors, and rail spikes under the Central Excise Tariff. The appellant initially classified the products as T.I. 7302.90 based on the suggestion of departmental officers, but believed the correct classification should be 7302.10. The appellant protested against the suggested classification and proposed to pay duty under protest. The classification list was approved by the proper officer, and the appellant did not appeal against this approval. Instead, the appellant approached the Assistant Collector, who rejected the protest. The appellant challenged this rejection before the Collector (Appeals), who dismissed the appeal.

Payment of Duty Under Protest Procedure:
Rule 233B of the Central Excise Rules deals with the procedure for paying duty under protest. The rule requires an assessee to deliver a letter to the Proper Officer stating the grounds for payment of duty under protest. An acknowledgment for the letter should be provided, and an endorsement "Duty paid under protest" must be made on relevant documents. If the remedy of appeal or revision is not available, the assessee can give a detailed representation to the Assistant Collector within three months. The rule allows filing an appeal or revision where applicable. In this case, the appellant failed to follow the procedure correctly, leading to the rejection of the protest by the Assistant Collector and subsequent dismissal by the Collector (Appeals).

Failure to Appeal Against Approval Order:
Another issue raised was the appellant's failure to file an appeal against the order approving the classification list. Rule 173B requires the assessee to file a classification list for approval, and the proper officer must approve it after necessary inquiry. The order of approval is appealable under Section 35 of the Central Excises and Salt Act, 1944. The appellant did not exercise the right to appeal against the approval order, which led to the Collector (Appeals) confirming the rejection of the protest. The failure to appeal against the approval order prevented the appellant from pursuing the protest further.

In conclusion, the Appellate Tribunal found no grounds to interfere with the lower authorities' decisions. The appeal was dismissed due to the appellant's failure to follow the correct procedures for payment of duty under protest and the failure to appeal against the order approving the classification list.