9911796707
TMI Blog1994 (6) TMI 71X X X X Extracts X X X X X X X X Extracts X X X X ..... te Government Company having about 19 Units and one of the Units deals in the manufacture of rosin and turpentine. This Unit has three factories in Jammu, one at Miran Sahib, one at Sunder Bani and one at Fatehpur in District Rajouri and it is the Rajouri Unit which is the appellant herein. Most of the trees in the Rajouri District excrete rosin as a natural process which is manually removed from the tree trunks while in the semi-solid state by the Forest Department of the State Government which then sells the same to the appellant company by weight in its raw form. The process of manufacturing turpentine oil in liquid form is either by the conventional method without using any electric energy or the modern method by use of electric energy. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The appellants prayer is for refund of the duty paid during this period together with interest thereon. For the period 1-4-1979 to 31-12-1979, refund claim was held to be time barred while the refund for the period from 1-1-1980 to 31-3-1980 was sanctioned on the ground that the protest was indicated on the PLA for this period. E/871/85-NRB is for refund of duty paid for the period 1-4-1979 to 31-12-1979 together with interest as well as interest due on the amount already refunded for 1-1-1980 to 31-3-1980. In E/872/85-NRB the appellants claim interest due on the duty paid during the period 1-4-1980 to 4-6-1980 already refunded to them from the date of deposit till actual refund. 3. We have heard Shri M.N. Tiku, learned Advocate and Shri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 27-4-1978 of Superintendent Technical to emphasise his contention that the appellants had all along been protesting against the levy of duty even though the word `protest had not been formally mentioned any where in the correspondence or other documents. We are unable to accept this contention. The issue of show cause notice and consequent orders in no way establishes that the appellants were coerced and forced to pay the duty. To our minds there does not appear to be any indication that the appellants protested or did not accept the levy of duty prior to 1-1-1980. We find that the lower appellate authority has relied upon Rule 173B(3) regarding payment of duty under protest by an assessee who disputes the rate of duty approved by the prop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1980 whereas Section 11B was inserted with effect from 17-11-1980. Hence, rejection of the claims under Section 11B was technically incorrect. 8. I also notice that the Ld. Advocate is correct in saying that Rule 173B cannot be applied retrospectively. But this does not help the cause of the appellants as the Ld. Advocate has not been able to substantiate his contention that duty was paid under coercion or protest during the period for which the refund claims had been rejected. 9. No evidence has been laid before us to show that factory had been actually working without the aid of power and was therefore, entitled for the benefit of exemption claimed. However, the Ld. Counsel has referred to a letter of Asstt. Collector dated 26/28-5-1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the claim had been staked. If it was so done within the normal period of time prescribed as per provisions in force during the relevant period of time. 15. Further more, a successor Asstt. Collector could not reject the consequential refund claim flowing from the decision of his predecessor. 16. As the Ld. Collector (Appeals) has not taken the above aspects into account, therefore, I set aside the inpugned orders in so far as the rejection of refund was concerned and remand these matters to the Asstt. Collector for reconsideration in accordance with the above observations and the law as it stood during the relevant period. 17. In so far as the accepted refund claims are concerned, the claim of interest regarding them cannot be ent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant will be able to present their case properly before the lower authorities and get a fair trial; that the appellant had filed a letter claiming exemption from duty on 20-9-1979 but in the order passed by the Asstt. Collector allowing the appellant exemption referred to only the letter dated 15-3-1980; that the letter dated 20-9-1979 was a letter claiming exemption from payment of duty and should have been treated as such; that no order has been passed by the Asstt. Collector allowing the appellant exemption on the basis of the letter dated 20-9-1979 and therefore grave injustice has been done to the appellant; that in the circumstances, the Hon ble Vice President had held that this was a fit case for remand. The ld. Counsel for ..... X X X X Extracts X X X X X X X X Extracts X X X X
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