1998 (5) TMI 255 - AT - Central Excise

Issues Involved:
1. Classification dispute of glass frit under the Central Excise Tariff.
2. Validity of refund claim for duty paid from 11-3-1986 to 3-8-1986.
3. Compliance with Rule 233B for payment of duty under protest.
4. Application of Section 11B of the Central Excise Act regarding the time limit for refund claims.
5. Issue of unjust enrichment.

Issue-Wise Detailed Analysis:

1. Classification Dispute of Glass Frit:
The Appellant, a manufacturer of glass frit since 1970, faced a classification dispute under the 1st Schedule of the Central Excise Act. The department classified the product under Item No. 23A(4) as "other glass," while the Appellant claimed it should fall under the residuary entry 68. The Tribunal upheld the Department's classification, which the Appellant challenged before the Supreme Court, obtaining a stay order on recovery dated 30-4-1982. The classification issue was further complicated by the introduction of the 1985 Tariff Act, where the department suggested classifying glass frit as enamel frit under sub-heading 3207.90. The Appellant later filed a classification list under sub-heading 3207.10, which was approved on 20-4-1987.

2. Validity of Refund Claim:
The Appellant submitted a refund claim on 27-7-1987 for Rs. 13,540.50 for the duty paid from 11-3-1986 to 3-8-1986 under sub-heading 3207.90, arguing that this classification was not applicable. The Assistant Collector initially rejected the claim ex parte, but it was later set aside on appeal, directing de novo adjudication. The Assistant Collector then issued a refund cheque, which the department contested, arguing that the Appellant had not filed a protest letter as required under Rule 233B and that the refund claim was time-barred.

3. Compliance with Rule 233B:
The Appellant claimed to have paid the duty under protest, evidenced by a letter dated 10-6-1982 and the classification list filed under protest. However, the Collector (Appeals) found that there was no evidence of compliance with Rule 233B, which requires a formal protest letter to be acknowledged by the Range Officer and endorsements of protest on relevant documents. The Tribunal noted that the Appellant failed to produce any acknowledgment from the proper officer or endorsements on gate passes and other documents, indicating non-compliance with Rule 233B.

4. Application of Section 11B:
Section 11B of the Central Excise Act stipulates that a refund claim must be made within six months from the relevant date unless the duty was paid under protest. The Appellant argued that the duty was paid under protest, thus exempting the claim from the six-month limitation. However, the Tribunal found that the Appellant did not meet the requirements of Rule 233B, which is necessary for the protest to be valid. Consequently, the refund claim was deemed time-barred.

5. Issue of Unjust Enrichment:
The department also raised the issue of unjust enrichment, arguing that the Appellant had not demonstrated that the incidence of duty had not been passed on to any other person. The Tribunal did not delve deeply into this issue, as the primary grounds for rejecting the appeal were non-compliance with Rule 233B and the time-barred nature of the refund claim.

Conclusion:
The Tribunal concluded that the Appellant did not comply with the requirements of Rule 233B for paying duty under protest and that the refund claim was time-barred under Section 11B of the Central Excise Act. Consequently, the appeal was rejected, and the impugned order was confirmed.

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