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TMI Blog1985 (7) TMI 230X X X X Extracts X X X X X X X X Extracts X X X X ..... n 24-8-1981 rejected the claim by observing that : On scrutiny of your above referred refund claim it is observed that the same pertains to the C. Lists Nos. 119, 127, 135, 19, 49, 93, 53, 60, 79, 91, 29, 39 filed by you from time to time for classifying the said blankets under Tariff Item 68 and further observed that, these C. Lists had not been filed under protest, nor any letter of protest was given by you stating that you did not agree for the classification of your blankets under Tariff Item 68, as and when you filed the above C. Lists. This indicates that the duty was paid by you voluntarily as per the approved classification lists. Merely writing on some gate passes the words, duty paid under protest" cannot serve the purpose of protest, when no reasons for such protest are mentioned. There is also no appeal filed by you against the approval of the aforesaid C. Lists." Being aggrieved by the said order of the Assistant Collector, the respondents herein preferred an appeal before the Collector of Central Excise (Appeals) Bombay. Collector (Appeals) allowed the appeal holding that during the relevant time, cotton blankets were classifiable under Tariff Item 19 CET and not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re, no refund can be granted to them. Shri Pattekar further contended that the refund was sought from 4-8-1977 to 28-6-1980 by an application dated 24-7-1980. The claim made for the period prior to 6 months from the date of claim was barred by time and that the Collector (Appeals) committed an error in allowing the entire claim. It was also contended by Shri Pattekar that paid under protest was made on the triplicate copies of the gate passes and random check carried out show that the duplicate copies did not contain such endorsement. Therefore, the alleged payment under protest was not true. He, therefore, prayed that the appeal may be allowed and the order of the Collector (Appeals) may be set aside. 4. Shri Phadnis for the respondents, however, submitted that the appellant was not correct in contending that their claim related to the period from 4-8-1977 to 28-6-1980. The refund claims according to Shri Phadnis pertained for the period from 4-8-1977 to 23-9-1977 and from 1-3-1979 to 28-6-1980. He alleged that in view of the directions contained in the letter dated 2-7-1979 of the Office Supdt. no duty was paid between 24-9-1977 to 28-2-1979 and therefore, the question of cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... paid under protest. Even in the gate pass the reason for paying the duty under protest, was not endorsed. The refund application was stated to have been made on 24-7-1980. According to the Assistant Collector and according to the order of the Collector (Appeals), the refund was claimed for the period from 4-8-1977 to 28-6-1980. But the learned Advocate for the respondent had clarified that no duty was paid between 24-9-1977 to 28-2-1979 and as such the question of claiming refund does not arise. With these facts, we shall proceed to consider the question which we have set out, earlier. 7. In his order, the Assistant Collector has observed that the refund claims pertained to 12 classification lists filed from time to time and the said lists had not been filed under protest. He has further observed that there was no letter of protest given by the respondents herein that they did not agree with the classification. It was also observed by him that merely writing on some gate passes the words duty paid under protest cannot serve the purpose of protest when no reasons for the protest was mentioned 8. The Collector (Appeals) however, was of the view that the duty was paid under pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ention that subsequent to the letter dated 23-2-1979 they started making payment of duty under protest is rather difficult to believe. It may be pointed out here that under sub-rule (3) of Rule 173-B, where the assessee disputes the rate of duty approved by the proper officer in respect of any goods, he has to pay the duty under protest at the rate approved by the officer, but he has to give an intimation to the proper officer. Admittedly, this procedure was also not followed by the respondent. Rule 173-F provides for determination of duty and payment of duty by the assessee himself. Under Rule 173-G(3) the assessee is required to submit a monthly return, popularly known as R.T. 12 return within 7 days after the close of each month to the proper officer. Rule 173-1 requires the proper officer to complete the assessment memorandum on the return submitted by the assessee. It is not the case of the respondent that while making the debit entries in their P.L.A. account they made any endorsement that the debit entry was made under protest. It was also not the case of the respondent that while submitting the R.T. 12 returns, they made an endorsement that duty was paid under protest. It w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ose circumstances the Special Bench held that the limitation prescribed under 11B was inapplicable. It further held that in the absence of evidence regarding the intimation required to be conveyed to the assessee under sub-Rule (5) of Rule 173-D, the respondents therein were not required to challenge the classification. In the instant case, as has been pointed out earlier, no objection was taken as to the classification. The procedure required under Rule 173B (3 was also not followed. In the circumstances, we hold that the decision relied upon by the learned Advocate for the respondent is inapplicable to the facts of the present case. 12. The only other question that remains for consideration is whether the appellants were entitled to claim refund of any amount ? The order of the Collector (Appeals) indicates that cotton blankets are not required to be classified against Tariff Item 68 and there was a Trade Notice dated 21st June, 1980. Apparently, because of the said trade notice the respondents herein claimed refund by their letter dated 24-7-1980. If no duty is payable in respect of cotton blankets under Tariff Item 68 and if the respondents had paid the duty under the said it ..... X X X X Extracts X X X X X X X X Extracts X X X X
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