9911796707
TMI Blog1989 (4) TMI 221X X X X Extracts X X X X X X X X Extracts X X X X ..... uring the course of manufacture of sugar the appellant produces Steam Bagasse, which are captively consumed in the manufacture of Alcohol in the distillery unit which is also situated in the same licensed premises. For the period April, 1982 to Feb 1983 in respect of the Steam Bagasse the appellant filed a Classification List claiming exemption under Central Excise Notification No. 118/75, dated 30-4-1975 and the same was duly approved by the Assistant Collector of Central Excise by his order dated 28-3-1981 vide classification List No. 2670/81. Subsequent to the approval of the Classification by the proper officer, when the appellant submitted the monthly RT 12 returns, in accordance therewith, the Superintendent of Central Excise made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... perintendent had proceeded on the basis that Rectified Spirit produced in the distillery is not excisable commodity and hence exemption was not applicable to the appellant in terms of the Notification 118/75. The appellant further stated that Notification 118/75 did not prohibit availing of exemption in case of captive consumption viz. Steam or Bagasse in the own distillery and no condition that the end-product in question should not be exempted from payment of duty was enumerated in the said Notification. The Assistant Collector of Central Excise on receipt of the above refund application of the appellant returned it to the appellant on 5-10-1983 directing that the claim may be submitted to this office after obtaining orders against the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r out of which the present appeal arises. 3. Shri Vijayaraghavan, the learned Consultant for the appellant, submitted that the fact that the appellant is entitled to refund of the amount in question does not admit of any controversy and the only ground on which the refund application was rejected by the original authority was that the same was barred by limitation under Section 11B of the Act. The original authority held that the duty was not paid under protest in conformity with Rule 233B of the Central Excise Rules. The learned Consultant submitted that in respect of the duty paid on 26-5-1983 and 31-5-1983 refund application was filed as early as on 8-9-1983 well within the period of 6 months from the date of duty and, therefore, the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ollector thereby implying that if there was a valid protest the Assistant Collector would be competent to grant the refund. 4. Shri Bhatia, the learned Senior D.R., submitted that protest can only be in terms of Rule 233B of the Rules; since Section 11B of the Act specifically refers to it and no other mode of protest is contemplated under the Act or Rules and, therefore, when there was no protest either in the Gate Passes or in the RT 12 returns, a subsequent protest endorsement in the challan will be of no avail. 5. We have carefully considered the submissions made before us. The fact that the appellant would be entitled to the amount in question under law is not disputed and is indeed admitted before us. The further fact remains that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... payment, the appellant should have been granted the refund. The view, of-the original authority that there was no protest in accordance with Rule 233B of the Central Excise Rules does not appear to be correct. A bare reading of Rule 173B, sub-rule (3) would show that only where the assessee disputes the rate of duty approved by the proper officer in respect of any goods, he may, after giving an intimation to that effect to such officer, pay duty under protest at the rate approved by such officer. Rule 233B has got to be construed in the context and setting of Rule 173B and the appellant can make a protest endorsement in Gate Passer and in RT 12 only if his classification had not been approved but not otherwise. Therefore, in our opinion, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such a way as to render it nugatory and unworkable. In the present case when the appellant admittedly is entitled to the amount in question and when he has taken out a refund application specifically setting out the grounds for claiming refund well within the prescribed period of limitation and also by way of abundant caution made endorsement of protest in the only document viz. the challan where alone in the circumstances of the case he could have if at all protested and all in the context of a situation where the classification list of the appellant claiming the benefit of Notification 118/75 has also been accorded approval not only by the Assistant Collector of Central Excise but has also received the blessings of the appellate authorit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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