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TMI Blog1989 (6) TMI 184X X X X Extracts X X X X X X X X Extracts X X X X ..... res. They take job work from customers and mainly of M/s. Garden Reach Ship Builders Engineering Limited, who supply the raw materials to them. They carry on fabrication work of cutting and bending the raw materials supplied by their customers and the same are returned to them as semi-finished structures. There is no manufacture and semi-finished structures are not goods. On this question of whether the job activity undertaken by them pertaining to M/s. Garden Reach Ship Builders is a manufacture or not is still pending consideration before the Assistant Collector. The Assistant Collector had raised four demands in respect of the job work carried on by the appellants for various periods. The Assistant Collector had passed four orders-in-original, which were appealed against before the Collector (Appeals), Bombay, who had remanded all the matters for fresh disposal as per law to the Assistant Collector. Aggrieved by the said order, the Collector of Central Excise, Bombay had preferred appeal before this Tribunal against only one order in Appeal (No. 651/87), which came up for hearing along with these appeals. The said appeal No. 651/87 was dismissed by this Tribunal so as to enabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stant Collector had also rejected the claim on the ground that the appellants had failed to observe the proper procedure laid down under Rule 233B of the Act. 5. The appellants contention before the Collector (Appeals), Bombay in both the appeals had been that they were not engaged in the manufacture of goods as understood under Section 2(d) of the Act. They are manufacturing the semi-finished structures which are to be installed and fitted in a turn-key project. The goods are not capable of being sold and purchased in the market. Duty is leviable on manufactured goods. The appellants had further submitted that the structures which they had supplied to M/s. Garden Reach Ship Builders Engg. Ltd. have been declared as deemed export and, therefore, such clearances were not to be included for levy of duty. The value of goods cleared for home consumption alone was to be considered for eligibility of exemption under Notification No. 77/83. The appellants had submitted that the refund claim was filed on 21-6-1984 and had lodged the letter of protest on 3-4-1982 and 4-10-1982 and by another letter dated 6-4-1984 they had submitted that if value of structures is deducted from the total val ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that they were not required to pay duty since their product was exempted under Notification No. 89/79 Notification No. 105/80, dated 19-6-1980. The appellants had produced several letters addressed to Central Excise Officers from time to time in this regard. The appellants further submitted that the orders were passed by the Assistant Collector without affording any personal hearing. The Collector should have remanded the matter to the Assistant Collector for de novo adjudication. The appellants have further stated that they were paying duty right from the year 1977 under protest or under duress. They further stated that even if the procedure for lodging protest under 233B is not followed, they will not be disentitled to claim refund under Section 11B of the Act, which is paramount and which cannot be controlled by Rule 233B of the Rules. They submitted that any method of lodging the protest will meet the requirements of Section 11B. The provisions of Rule 233B were procedural and directory in nature and not strictly adhering to these provisions will not debar the appellants from claiming refund. 7. Shri V. Sridharan, Advocate appearing for the appellants strenuously argued his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sification list was addressed to the Assistant Collector and hence he was the proper officer. The letter dated 6-4-1983 was addressed to the Superintendent of Central Excise and hence the letter dated 6-4-1983 cannot be considered as letter of protest. He further submitted that without cause of action, no letter of protest could be lodged. The show cause notices and demands were all issued subsequently. He further stated that to lodge protest there has to be something disagreeable and that letter of protest can be lodged only if there is duress or coercion and the payment made under protest. In the instant case no such thing was available and hence the payment cannot be considered as payment under protest or under undue advantage . There has to be provisional assessment to make payment under Rule 9B and the rule further required execution of Bond by the assessee. In the instant case no provisional order had been passed and also the appellant/assessee had not executed any bond. Shri L.C. Chakraborthy relied upon the definition of the word protest as defined in Black s Law Dictionary (5th Edition) at page 110 and pointed out that the appellants letter does not constitute a pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal) == 1985 ECR 696 Tribunal (Para ,7) (vi) India Cements Ltd. v. Collector -1989 (41) E.L.T. 358 (SC) Para 10 (m) Hind Rectifiers Ltd. v. Collector of Customs -1989(39) E.L.T. 661 (Tribunal) (Para 2) (viii) Indian Drugs Pharmaceuticals Ltd. v. Collector of Customs -1988 (15) ECR 359 (Para 5) (ix) Meltron Semi-conductors Ltd. v. Collector of Customs -1987 (31) E.L.T. 117 (Tribunal) = 1984 ECR 1316 (Paras 4 5) 12. In countering the above arguments, Shri Chakraborthy submitted that these authorities were not applicable to the facts of this case. 13. We have heard both the sides and have gone through the facts and circumstances of the case. The question that arises for consideration in this appeal is as to whether the procedure followed by the appellants is as per the provisions of Rule 233B and whether there is valid protest in this case to enable them to claim refund of duty. 14. Rule 233B is reproduced below:- Rule 233B. Procedure to be followed in cases where duty is paid under protest. - (1) Where an assessee desires to pay duty under protest, he shall deliver to the proper officer a letter to this effect and give grounds for, payment of the duty un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stence of fear of consequences of not following the procedures. This by itself is a circumstance to enable a party to choose the time and liberty to pay the duty under protest and to lodge his claim by making proper grounds for refund of duty as provided for in Rule 233B. The only procedure contemplated in sub-rule (1) is that in the letter there should be a clear indication that the party will be paying the duty under protest and give grounds for payment of the duty under protest. In other words, although he is not entitled to pay duty but yet he is doing so to safeguard his rights as well as to protect himself from the consequences of penal provisions. The party has in furtherance of his act of lodging the letter of protest shall also put the words Duty paid under protest on all copies of the gate pass, the application for Removal and form RT 12 (or form RT13 as the case may be) as per sub-rule (4) of Rule 233B. This is only to indicate that he is disagreeable to the payment of duty and that he is keeping his claim for refund alive or in other words indicating his right of contest and of refund. There is no pre-supposition in excise law that persons who are likely to get exempt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d under protest . The Assistant Collector has taken notice of this protest and has replied to the letters and has adjudicated also. In the impugned order, the authorities below have only stated that the appellants have not followed the procedure as contemplated under Rule 233B without specifying as to what portion of the procedure they have violated. The order is, therefore, very bald and liable to set aside on this ground alone. The setting aside of the impugned order by itself will not make the appellants entitled for refund as the Assistant Collector has to again find out whether there are enough grounds available and the protest has been lodged in time or not. The main ground of the appellant is that the work of M/s. Garden Reach Ship Builders Engg. Ltd., does not amount to manufacture and if the value of this work is deducted from the total clearances for the respective years then the total clearances will still be under exemption limit. The Assistant Collector is yet to adjudicate on this question, which is pending before him. The matter is remanded back to him to consider the validity of the grounds of refund along with the matter pending before him and to pass a consolida ..... X X X X Extracts X X X X X X X X Extracts X X X X
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