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TMI Blog1986 (9) TMI 325X X X X Extracts X X X X X X X X Extracts X X X X ..... were the manufacturers of 'Cinema Chairs'. During the period from 9-12-78 to 18-3-80, the said Chairs were classified under T.I. No. 40 of Central Excise Tariff. On 21-12-79, the Respondents submitted classification list seeking classification of the Cinema Chairs as falling under T.I. 68 of C.E.T. This was provisionally approved by the Assistant Collector by his letter, dated 7-3-80, and finally by his letter, dated 9-5-80 The Respondents thereafter by their letter, dated 17-6-80 claimed refund of Rs. 1,55,587.46, the excess duty paid during the period 9-12-78 to 18-3-80. The Respondents also addressed another letter, dated 23-1-81 claiming refund of the excess duty. Since the duty had not been paid under protest, the Assistant Collector rejected the refund claim by his order, dated 15-7-81. In the appeal filed by the Respondents herein the Collector (Appeals) recorded a finding that the duty had been paid under protest as could be seen from Respondents' letter, dated 21-11-78 and as such the refund was not time barred. 4. The subject matter of the appeal ED(BOM)65/83 is the refund claim of Rs. 33,031.80 for the period from 20-7-77 to 14-1-78. The grounds urged in support o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said circumstances, the Collector (Appeals) committed no error when he held that the duty had been paid under protest and therefore, the Respondents became entitled to claim refund. 7. Shri Parikh further submitted that the refund claim which is the subject matter of appeal ED(BOM)65/83 related to the period 20-7-77 to 14-1-78. During the relevant period, Rule 11 read with Rule 173J was applicable. Rule 11 came to be amended on 6-8-77. Since the refund was claimed in respect of duty paid prior to the date of amendment the claim was government by the unamended rule and not amended rule. In support of his above contentions, Shri Parikh placed reliance on the following decisions :- (1) 1984 (18) E.L.T. page 264 (2) 1985 (21) E.L.T. page 854 (3) 1985 (22) E.L.T. page 522 8. Having regard to the rival contentions, the points that fall for determination in these appeals are : (i) whether the Collector (Appeals) was unjustified or committed an error in holding that the payment of duty for the period from 9-12-79 to 18-3-80 was made under protest and therefore not barred by limitation; and (ii) whether it is the amended Rule 11 or the unamended Rule 11 that is applicable to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeals by Shri Pattekar for the Department on the ground that the said letter was written for the purpose of obtaining 4 licence and it cannot be considered as having perpetual operation. Shri Pattekar urged that the classification list filed by the Appellant were approved by classifying the Cinema Chairs as falling under T.l.40 of C.E.T. and that the Respondents herein did not prefer any appeal against the classification. The protest, if any, made would come to an end when once the classification is approved and accepted. There is no force in this contention. As has been seen earlier, initially the Respondents were paying duty in respect of the chairs manufactured by them under T.I.40. Relying on the Government of India decision that the steel chairs of the type manufactured by them are not classifiable under T.I.40, they submitted revised classification list contending that their chairs are not excisable. The said classification list was approved by the Asstt. Collector by his letter, dated 30-1-78. Thereafter the Respondents did not pay any Central Excise duty on the chairs manufactured by them. The Superintendent by his letter, dated 2-9-78 and the letter, dated 21-9-78 requir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sification list was hardly any order-in-original; a reply to the protest made to the Collector; or an appealable order, as the department would have us believe. In that view of the 'matter, the protest would be technically still alive and there would be no question of any time-bar. In these circumstances, it would be neither legal nor proper to hold that the protests were deemed to have been extinguished since no appeal was filed". We respectfully agree with the above observations. 13. In the above view of the matter, we reject Shri Pattekar's contention that the Collector (Appeals) was either unjustified or committed an error in holding that the duty was paid under protest and therefore, not barred by Rule 11. 14. Coming to the second point, Shri Pattekar's contention was that the payment of duty was not made under protest. The refund application was made after Rule 11 was amended and therefore, the period of limitation that is applicable is as provided under the amended rule and not under the unamended rule as has been held by the Collector (Appeals). The question whether it is the unamended rule or amended rule that is applicable is no more res-integra. This very que ..... X X X X Extracts X X X X X X X X Extracts X X X X
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