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TMI Blog1991 (9) TMI 203X X X X Extracts X X X X X X X X Extracts X X X X ..... rder-in-appeal passed by the Collector of Central Excise (Appeals), Calcutta: (i) Whether the A.C. and/or Hon ble CEGAT, being creature of Central Excises and Salt Act, 1944, can travel beyond the restrictions/conditions imposed under Rule itself for availability of benefit of the Rule framed under the Act, itself. (ii) Whether in absence of endorsement Duty paid under protest on GP 1 and/or duty paying documents, the duty paid shall be treated as Paid under Protest . (iii) Whether in the absence of representation to the Assistant Collector of Central Excise against Order, which necessitates payment of duty under protest, within three months of the date of delivery of letter of protest, the duty paid shall be treated as paid under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ically laid down by the Honourable Supreme Court that rules of procedure are designed to advance justice and should be so interpreted and not to make them penal statutes for punishing erring parties (AIR 1985 SC 1 in Sital Prasad v. Union of India). The same has been adopted in the Allahabad High Court in U.P. Road Transport Corporation v. Income Tax Appellate Tribunal [1981 (159) ITR 642]. Again, Supreme Court had observed in Associated Cement Co. v. Commercial Tax Officer, Kota - AIR 1981 SC 1887 that while charging sections are interpreted strictly the machinery sections are not so interpreted. They are interpreted to suit the intention of the charging section and are not subject to rigorous construction. He also referred to the decision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uced below :- Our Ref. FCI/CE/82 Date 9-10-1982 The Superintendent of Central Excise, Dhurwa Dear Sir, We are in due receipt of your show cause notice which is received in our office on 6th October, 1982. We do not agree to what you have written and we are sending a proper reply to show cause in due course of time. Meanwhile if our combined clearances are to be taken then we have already crossed the 7.6 lakhs about 20 days before receipt of your show cause. Since we do not agree that we are not entitled to separate clearances. Even if total combined exemption upto 7.5 lakh is only available then also we have not enjoyed the limit as 100% duty free clearance made to parties using for industrial purpose are not to be included. Our ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the date of delivery of the letter of protest. The provisions of sub-rule (5) of Rule 233(B) have not been observed. These two aspects have been spelt out in Serial Numbers (ii) and (iii) of the points proposed for reference to the High Court. The findings thereon will govern the general questions raised in (i) and (iv) ibid. 6. As regards (ii) regarding the non-endorsement of the expression duty paid under protest in the Gate Passes and duty paying documents, it has been held in the order under reference that the duty demanded and paid by them included certain goods already cleared and hence the question of Gate Passes would not arise for them. Nor for that matter, the application for removal or RT 12. What was held was that when these ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under sub-rule (4) of Rule 233(B) would not arise. That would not, however, mean that duty had not been paid under protest. The said sub-rule would apply only if such documents are there at the material time. Hence no violation of the said sub-rule can be said to have taken place and accordingly sub-rule (8) would not come into play. So also the requirement of a detailed representation as in sub-rule (5) is not absolute as the said provision itself lays down that the assessee MAY (exphasis added) within three months of the date of delivery of the letter of protest give a detailed representation to the Assistant Collector of Central Excise. It is not mandatory, particularly in a case like this where such a letter had already been given in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arding time limit for filing of refund claim. 8. In the case of Commissioner of Income-Tax, Shillong v. Basanta Kumar Agarwalla and Another, reported in I.T.R. 1983 Vol. 140 Page-418 [relied on by the Tribunal in Collector of Central Excise, Patna v. Telco Ltd. -1991 (32) ECR 167 pp 170 para-10], the Hon ble Gauhati High Court has held that the Tribunal has only to refer a question of law which calls for investigation, examination, debate or when it is a dubious problem. It was also held that if a point of law decided by the Tribunal is positive, definite and sure, there is no obligation to refer such a matter as it cannot be termed as a question of law. It is not that every point of law raised is required to be referred to the High Court ..... X X X X Extracts X X X X X X X X Extracts X X X X
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