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TMI Blog1991 (3) TMI 253X X X X Extracts X X X X X X X X Extracts X X X X ..... g the discount. They also filed a Writ Petition in the High Court of Andhra Pradesh in Writ Petition No. 5602/83 against the denial of the abatement of the discount allowed by the appellants. The Hon ble High Court of Andhra Pradesh vide their order dated 10th November, 1987 on the prayer of the appellants for restraining the authorities from levying excise duty on the discount allowed to the distributors passed the following order : Having regard to the facts and circumstances we think it appropriate to remit this matter back for appropriate consideration by the 2nd respondent taking into consideration the decision of the Supreme Court in Union of India v. Bombay Tyre International Ltd. - (1) AIR 1984 SC 420 and further clarifications given by the Supreme Court from time to time. The petitioner shall be given an opportunity of being heard in the matter before any order is passed. In the meantime the jurisdictional Assistant Collector vide his order dated 4-7-1986 held that discounts were permissible and allowed the appellants to clear the machine tools after allowing the discounts. Appellants in the meantime had filed refund claim as seen from the records, which were returne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on which refund is claimed, under protest, the same will be time-barred. I may mention here that time-bar is relevant only when refund is permissible on merits, where refund is not permissible on merits, the question of time-bar is redundant or irrelevant. In the present case, there is dispute that refund is admissible on merits, in view of the Asst. Collector s order in 1986. However, since the claim has been made only in January 1986 and refund claim is for the period 1981 to 1984 and in the absence of any valid protest, under Rule 233B, the claim is necessarily time-barred. Shri Sharma Advocate pointed out that they had earlier filed refund application also which was returned and they were directed to file only after decision on merit is taken by the Hon ble High Court of Andhra Pradesh. Such application for refund was prematured, because by that time, neither the Hon ble High Court passed any order in favour of the appellants, nor the appellants had challenged the assessment orders in RT-12, in appeal before the proper appellate authority, i.e. Collector of Central Excise (Appeals), Madras. Their representation made to the Collector of Central Excise, Hyderabad which was not at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5 (21) E.L.T. 182 and 1987 (31) E.L.T. 238. 3. Shri P. Sundararaju, the learned SDR pleaded that the issue before the Hon ble High Court was different from that before the Tribunal. He has pleaded that before the Hon ble High Court the issue was regarding admissibility of the discounts while the issue in the proceedings before the Tribunal relates to refund of duty already paid. He has pleaded that the appellants had not followed the procedure for payment under protest as envisaged in Rule 233B of the Central Excise Rules. In view of this, the refund claimed has been rightly rejected on the ground of limitation. 4. The learned Counsel for the appellants in reply pleaded that the matter has to be viewed from another angle as to whether in the case of the appellants Rule 233B could at all have come into picture in the context of the demand made through RT-12 returns. He has pleaded that the appellants had filed a letter dated 23-9-1981 protesting against the demand made on the RT-12 returns for January 1981 to August 1981. He has pleaded that in any case the order of the Hon ble High Court can be taken to have given quietus to the question of limitation as the Hon ble High Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has not been taken up in appeal by the Department. The first question that falls for consideration therefore is on reading this order whether the payments made earlier in the context of RT-12s can be taken to have been made under protest. It is observed from the order of the Assistant Collector that he has held that these payments have been made under protest and has issued the order as he felt that he was required to pass an order in the context of the protest made under law. At this stage it is necessary to refer to the provisions of Rule 233B which for convenience of reference 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 under protest. (2) On receipt of the said letter, the Proper Officer shall give an acknowledgement to it. (3) The acknowledgement so given shall, subject to the provisions of sub-rule (4), be the proof that the assessee has paid the duty under protest from the day on which the letter of protest was delivered to the Proper Of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the operative portion of his order that the discount passed by M/s. Praga Tools to their distributors in the invoices is held to be correct . This to us appears to mean that the order refers to the past clearances, since subsequent portion of the AC S order has referred the clearances in future after allowing discounts. We observe that the appellants right from the beginning have been agitating before the authorities vide their letter dated 23 September, 1981 that demand was not maintainable and had even asked for the procedure to be followed for payment of duty under protest. While the authorities continued to raise the demand, while paying duty the appellants continued to endorse the payment under protest . It cannot be said that the authorities were not aware of this payment of duty under protest. In fact this position has been admitted by the order of the Assistant Collector dated 4-7-1986 referred to supra. The appellants refund claims which were filed earlier for refund of the amount were also returned since the matter was stated to be pending before the Hon ble High Court of Andhra Pradesh. Before the Hon ble High Court also, the appellants agitated the same point. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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