9911796707
TMI Blog1983 (5) TMI 130X X X X Extracts X X X X X X X X Extracts X X X X ..... 3-1969. On the midnight of 28-2-1969, the appellants had in their factory 6366.659 Metric Tonnes of fertilisers stored in bulk and some quantity packed in bags with which we are not concerned. Excise authorities were insisting on payment of duty on bulk quantity of fertilisers contending that they were not fully manufactured as they were not packed. The appellants were Members of Fertilisers Association of India . The Association advised all its members to pay excise duty on bulk quantity under protest if payment of duty before removal was insisted upon by the Excise authorities and lodge a separate strong protest in this behalf. The bulk quantity of fertilisers after being packed in bags were removed between 15-3-1969 to 20-8-1969. The ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were presented before this Tribunal. 3. On the date of hearing, Shri N.C. Sen, Advocate represented the appellants. Shrimati Vijay Zutshi, Senior Departmental Representative represented the Respondent Collector. They were heard and the record perused. 4. The appellants during the course of hearing produced their original record, from which it appears that the clearance of the goods was effected on payment of duty under protest. The appellants have also filed copies of their letters dated March 22, 1969 and April 12, 1969. In their letter dated March 22, 1969, the appellants inter alia contended that the stock of fertilisers was fully manufactured and ready for sale and use and should be treated as non-dutiable. It was further stated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... these circumstances the appellants claim for refund of duty by their further letter dated 15-5-1977 could be rejected as time barred. 7. The Assistant Collector of Central Excise rejected the appellants claim as barred by limitation under Rule 11 of the Central Excise Rules. The Appellate Collector of Central Excise also rejected the claim and referred to Rule 11 and Rule 173J of the Central Excise Rules, 1944. It appears that the appellants were granted the facility of S.R.P. so as to attract Rule 173J. These Rules have undergone changes from time to time and have now been deleted. For case of reference Rules 11 and 173J of the Central Excise Rules as they existed at the material time are extracted below : Rule 11 : No refund of dutie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n it was demanded by the Revenue authorities and finally paid the amount of duty under protest for clearance of fertiliser under Rule 52. The payment, the Company represented in unequivocal terms, was made under protest. The payment was made as a measure in business expediency under the compulsion of circumstances. The Andhra Pradesh High Court, on these facts while considering the applicability of Rule 11 of the Central Excise Rules, held as under : The circumstances narrated above in no way warrant the application of Rule 11 of the 1944 rules. The Company had not paid the amount by inadvertence or by error or by misconstruction of any rule. The payment was in no sense a voluntary payment except that the excise officials enforced ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... waiting the decision of Madras High Court in a similar matter referred to in para 2 above. The contention of the Departmental Representative that merely because at the material time there was no provision under the Rules for payment under protest the appellants could not do so and the Government could unauthorisedly and illegally retain this amount cannot be accepted. 12. The appellants claim deserves to be allowed for two reasons : firstly, because before the limitation expired they had stated that they are making payment under protest and registering their claim for refund and secondly, to such a payment in view of the two judgments referred to above and the facts and circumstances obtaining in the case in particular the enunciation co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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