9911796707
TMI Blog1993 (6) TMI 167X X X X Extracts X X X X X X X X Extracts X X X X ..... the said order the last mentioned authority had rejected their refund claim and not accepted their plea that they had paid duty under protest and that they were entitled to consequential benefit arising from the order in appeal dated 10-4-1985 passed by the Collector of Central Excise (Appeals), Calcutta on an appeal filed by M/s. Steelage Industries Ltd., who had received carbon dioxide gas supplied by the present appellants without payment of duty. The appeal by the latter company was against the duty demanded from them holding them to be ineligible for receiving duty free supplies of carbon dioxide gas. 2. The facts necessary for the disposal of the appeal as have come out therein are briefly as follows :- 3. The appellants manufactu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relief to the appellants. On receipt of this order, the said customers of the appellant company informed them about the same and instructed them to file a refund claim and pass on the refund to be received by them (the appellant) to them. Thereupon, the appellants filed a refund claim, which is dated 25-7-1985. In the said refund claim they referred to their payment of duty under protest and also said that refund was due to them as a consequence of the order in appeal passed by the Collector of Central Excise (Appeals) on the appeal filed by their customer. The Assistant Collector, however, rejected this claim holding that payment of duty was not under protest and that the benefit of the order in appeal would only accrue to the appellants, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n (3) of Section 11B does not stipulate that the protest should be in accordance with the provisions of Rule 233B. Section 11B contemplates that if duty is paid by an assessee under protest, the time limit specified in the said section would not apply, m the present case, it is an admitted fact that they had filed a letter of protest dated 7-6-1984 in the office of the Assistant Collector on 8-6-1984. Accordingly, their refund claim would not be hit by the time limit specified in Section 11B of the Act and accordingly, the impugned order in appeal requires to be set aside and the refund claim allowed. 5. When the appeal was posted for hearing, Shri S.K. Sinha, learned Advocate appeared for the appellants. He submitted that the finding of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fund to be sanctioned by the Department to them to their customers and the requirements of unjust enrichment provisions have been met to enable the Department to pay the refund in cash to them (the appellants). Shri Sinha also urged that consequential refund would not be restricted only to the appellant in the particular appeal but it would also extend to the actual manufacturer who is concerned in the matter. He pointed out that the refund claim had been filed by them on 26-7-1985. He also submitted that duty paid during the period of six months immediately preceding the said date would in any case be available to them. He, however, pleaded that their appeal be allowed for the entire period as duty had been actually paid under protest as c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e considered the submissions. I find that the decision of the Assistant Collector that the consequential refund in terms of sub-section (3) of Section 11B arising from the first appellate order would accrue only to the appellants who had filed the said appeal is correct. That appeal had been filed by their customers challenging the confirmation of the demand of duty issued to them which covered supplies received by them without payment of duty. It was decided that they were eligible for the benefit of the relevant exemption notification. The appeal was allowed on that consideration and the Assistant Collector s order was set aside with consequential reliefs to the appellants (therein). The effect of the said appellate order is that the dema ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er appellate order would support the appellants case on merits as their customers Steelage Industries have been held to be eligible to receive duty free supplies of carbon dioxide for manufacture of fire extinguishers. 9. The refund claim has been rejected on the grounds that duty had not been paid under protest and that there is no case for suo motu refund as a result of the appellate order favouring Steelage Industries. The refund claim has to be decided on merits for the period within the permissible period of six months. I do not agree with the contention raised by Shri Biswas, learned S.D.R. that this is a new claim or new ground raised in the appeal. They had filed a claim for the entire amount and their claim has not been consider ..... X X X X Extracts X X X X X X X X Extracts X X X X
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