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TMI Blog1990 (1) TMI 214X X X X Extracts X X X X X X X X Extracts X X X X ..... otest was lodged under a letter dated 7-11-1980 and again a letter was filed by them in this regard on 5-6-1981 after the new Rule 233B, which prescribed the procedure for paying duty under protest, was introduced by Notification No. 115/81-C.E., dated 12-5-1981. The appellants filed a refund claim on 3-4-1986 for an amount of Rs. 61,366.25 claiming the refund of the interest paid on yarn duty during the aforesaid period. The original authority while rejecting the refund claim has held as under : "As regards interest on yarn duty, this is collected under Rule 49A of the Central Excise Rules, 1944. Rule 49A is a facility for deferred payment of duty on yarn. As per the Central Excise Law, for composite mills, duty has to be paid on yarn when it is removed for weaving. As a procedural facility, the Government have deferred collection of yarn duty at this stage and have allowed the assessee to pay duty at the fabric stage along with the duty payable on yarn. Because the duly collection on yarn is deferred, the Government is deprived of the use of the amount of duty due on yarn. Charging interest has therefore been provided because of this deprivation to the Government. Interest is no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting them to pay duly on account of interest on yarn duty but some verbal directions were given. Therefore there was no appealable order. They did not ask the Superintendent or Asst. Collector for issue of an appealable order. Sub-rule (7) of Rule 233B states that on service of the decision or the representation referred to in sub-rule (5) or of appeal or revision referred to in sub-rule (6), the assessee shall have no right to deposit duty under protest. In the present case, there could not be a service of decision on the representation referred to in sub-rule (5) as no such representation at all was filed by the appellants. Therefore, after a period of 3 months during which period the appellants were enjoined to file a representation under sub-rule (5) of Rule 233B their payment of duty under protest is automatically vacated i.e. because they have not followed up payment of duty under protest as laid down under Rule 233B. Therefore, in the absence of a valid protest for the period from 6-10-1980 to 13-3-1986, the amount cannot be refunded even if on merits, they were not required to pay interest on the yarn duty, which is not payable in case of export under Rule 13." Here the le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... c spun yarn and cotton yarn along with the duty on cotton fabrics. - Where a manufacturer.-- (i) who manufactures cellulosic spun yarn falling under Heading No. 55.05, and Cotton yarn, falling under Heading No. 52.03 of the Schedule to the Central Excise Tariff Act, 1985 (5 of 1986) or both, and uses the whole or part of the yarn so manufactured in the manufacture of cotton fabrics in his own factory, or (ii) who being a composite mill, brings such yarn under Rule 96E or Rule 96EE, as the case may be, from outside for the purpose of manufacture of cotton fabrics in his own factory, makes an application to the Collector in this behalf, shall, on such application being granted by the Collector, pay the duty leviable on such cellulosic spun yarn and such cotton yarn along with the duty on such cotton fabrics in the manner prescribed in Rule 52, subject to the following conditions, namely :- (1) when the cotton fabrics are cleared grey (unprocessed), the yarn duty payable shall be- (a) the appropriate duty payable on such cellulosic spun yarn or cotton yarn, or both, as the case may be: plus (b) one and a half per cent of the duty payable on such cellulosic spun yarn or cotton y ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd cannot go beyond the provisions of that Act. In the Tribunal's decision mentioned by the learned SDR, the issue before the Bench was the condonation of time limit in filing a reference application. In respect of this, there is already a provision in the Act itself. Therefore, there could be no question of applying the provisions of Limitation Act as has been rightly held by the Tribunal in the decision quoted earlier. In the instant case, however, the situation is different. There is no time limit provided in respect of recovery of short-payment or refund of excess payment of various dues arising under the Central Excise Law except in respect of duty of excise. The question, therefore, is whether in such circumstances the Tribunal can apply the General Law of Limitation or not in such instances. I observe that there are instances where provisions of general limitation under the Limitation Act are applied by the departmental authorities for giving certain amounts of refund to the assessees, such as refunds of licence fee applications, refund of balance deposits in PLAs, refund of deposits of compounded levy on khandsari sugar and refunds of double duty charged inadvertently on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r relates to a rebate of duty of excise on goods exported to any country or territory outside India or on excisable materials used in the manufacture of goods which are exported to any country or territory outside India. It is the admitted case that the goods were exported and the claim was for rebate and the rebate was granted and, therefore, the interest claimed by the appellant is one arising on the rebate claimed and as such would stand excluded from the jurisdiction of this Tribunal in terms of Section 35B, clause (b) of first proviso thereto, of the Central Excises and Salt Act, 1944. Refund claim of interest on rebate as well as claim of rebate are inextricably intertwined and cannot be separated. I would also like to extract Rule 12, which is relevant herein : "RULE 12. Rebate of duty on goods exported. - (1) The Central Government may, from time to time, by notification in the Official Gazette, grant rebate of duty paid on excisable goods, if exported outside India, to such extent, and subject to such safeguards, conditions and limitations as regards the class of goods, destination, mode of transport, and other allied matters as may be specified therein." In the order pa ..... 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