9911796707
TMI Blog1989 (8) TMI 173X X X X Extracts X X X X X X X X Extracts X X X X ..... t. However, the Asstt. Collector of Central Excise, Division II, Ghaziabad rejected the same findings as follows: It is stated that the party had paid duty under protest. The protest was lodged in the Divisional office where it was entered as receipt No. 874 dated 20-3-1982. On GP 1 dated 24-3-1982 to GP 13 dated 29-3-1982, the duty is said to have been paid under protest. This protest however is regarding exemption admissible under T.I. 17(4) which according to the party should have been allowed to them. In the present case, I find that there is no protest to the effect that duty was not payable under T.I. 68 and was permissible under T.I. 17(4). As such this protest is not relevant to the circumstances and facts of the case. In view of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f with the exemption as such. It is in this context that a formal letter of protest was not lodged for assessment of goods under tariff item 68 and which tried to seek shelter under Notification 66/82 dated 28-2-1982 giving exemption to unprinted containers under tariff item 17(4). 4. I have carefully considered the pleas of the appellant but I am unable to accept its pleas. If the appellant could lodge a protest for denial of the benefit of notification 62/82 it could as well lodge a protest for denial of assessment under tariff item 68. Lodging of protest is now a mandatory provision in terms of rule 223B of the Central Excise Rules. Accordingly, the appeal is rejected". 4. We have heard Shri A.R. Madhav Rao, Advocate for the appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... epartment regarding tariff changes. However, the department did not agree with the appellants and insisted them to take out L.4 licence and pay duty at the time of clearance under T.I. 17(4) vide its letter C.No. 146 dated 18-3-1982. He emphasised that thereafter the appellants lodged their protest with the Asstt. Collector on 20-3-1982 and started clearing the goods on payment of duty by stating on the Gate passes that the duty is paid under protest. He further emphasised that both the authorities below erred is not treating the said protest as a protest under the Act and the Rules made hereunder. He also submitted that on merits the appellants have a good case in view of the decision rendered by this Tribunal in the case of M/s. Fibre Fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation No. 111/78-C.E., dated 9-5-1978 also stated categorically that the appellants undertook to deposit the duty on the composite containers on demand in case the commodity (composite containers) are definable in T.I.17(4) cleared by us (appellants) till the decision arrives at by the department regarding tariff change . This representation was followed by the subsequent letter dated 9-3-1982, inter alia, reiterating that the appellants do not come under the purview of excise Tariff Item 17(4) and that the demand of the department to pay duty under T.I.17(4) is unwarranted and against Rules and also by another letter dated 20-3-1982 again, inter alia, reiterating that the appellants are making representation against the order for taking o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich could be raised regarding the classification of the goods in question under T.I. 17(4) and levy of duty on it were raised and followed by subsequent letters dated 9-3-1982 and 20-3-1982. If this could not be said to be a protest in terms of sub-rule (1) of Rule 233B of the Central Excise Rules one fails to understand what else it could be. It does not require much time to analyse the contents of the said letter and ordinary reading with commonsense would reveal to anybody that the appellants were not accepting the liability without protest and ultimately their said representation and protest was accepted by the department. In this view, we are supported by a very recent judgment of the Hon ble Supreme Court of India rendered in Cement ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
