9911796707
TMI Blog1990 (8) TMI 236X X X X Extracts X X X X X X X X Extracts X X X X ..... of audio cassette tapes and filed a classification list, originally classifying the goods under Item 59(1) of the erstwhile Central Excise Tariff on 9-11-1984. This classification was approved by the Department. The appellant filed an application for reclassification of the goods under T.I. 59(3). The Asst. Collector by his order dated 25-9-1985 denied the request of such re-classification and classified the product under T.I. 59(1). The appellant herein was making the payment under protest in terms of classification under T.I. 59(3) from 9-12-1984, the date of seeking revision of the classification list. The Department was accepting the payment by protest and in the meanwhile the appellant moved the Government of India through the Departme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esent case the order on classification was passed by the Asst. Collector and was served on the appellant on 30-9-1985; therefore, reckoning the period of three months to file an appeal against the same, it would be open to the appellant to deposit the duty under protest in terms of the proviso to Rule 233B upto 31-1-1986. The learned counsel, therefore, contended that even on this view the appellant would be eligible to get the refund of the duty paid upto 31-1-1986 without the claim being hit by the bar of limitation. Finally it was urged that when the Central Board has already issued a Tariff Advice clearly holding that the appellant does not have to pay the duty under classification 59(1) the amount collected by the Department as duty un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... disposed of the plea in the impugned order as under - I have carefully gone through the submissions made in the grounds of appeal and also the decision of Asst. Collector in the impugned order. The refund claim has been rejected on the ground of time bar. The appellants contend that a price list made by them, if not vacated by the Asst. Collector, continues and as such, the time bar does not apply in case duty is paid under protest. On this issue, I agree with the finding of the Asst. Collector, that if appellants do not file appeal against a decision of the Asst. Collector, then after expiry of the period for filing of appeal the protest is vacated. Further the reason for protest being now accepted by appellants, the protest is vacated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ority by about 31-1-1986. The question as to whether the appellant would be entitled to deposit the duty under protest in terms of Rule 233B sub-rules (6) to (8) extracted above has not been specifically considered by the lower appellate authority. We would also like to note that the lower appellate authority also has not addressed himself to the question as to whether the appellant would be entitled to refund for the period 25th Dec., 1984 to 25-9-1985 (when the appellant filed a revised classification list under Tariff Item 59(3) till 25-9-1985 when the order on classification was passed by the Asst. Collector of Central Excise) in terms of Rule 233B of the Central Excise Rules, 1944 read with the proviso to Sec. 11B of the Central Excise ..... X X X X Extracts X X X X X X X X Extracts X X X X
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