9911796707
TMI Blog1995 (9) TMI 143X X X X Extracts X X X X X X X X Extracts X X X X ..... eriod from Oct., 1981 to July, 1988 on the ground that Flat bar below 3 mm in thickness falls in the category of bars both in technical as well as in commercial parlance and such bars are exempted from levy of Central Excise duty in terms of Notification No. 206/63, dated 30-11-1963 as amended by Notification No. 163/68, dated 31-8-1968 and further Notifications issued thereafter. The appellants relied on the judgements rendered by the Tribunal in support of their refund claim. The department after examining the claim felt that the assessee had not adopted the procedure as laid down under Rule 233B of Central Excise Rules, 1944, inasmuch as they did not submit a letter of protest or intention to pay duty under protest as per the prescribed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of duty was not accepted by the department, as the party had not adopted the prescirbed procedure under Rule 233B of Central Excise Rules, 1944. The Assistant Collector has noted that the appellants have filed the refund claim on 11-12-1986 for the duty paid for the period 1-10-1981 to 31-7-1986 and therefore, the claim having been filed after six months is barred by time. The Learned Collector has simply endorsed this view of Assistant Collector by a very brief order. 2. We have heard Shri K.K. Anand, the Learned Advocate for the appellants, and Shri K.K. Dutta, the Learned JDR for the Revenue. 3. The Learned Advocate submitted that the Supreme Court s judgement cited by the appellants before the lower authorities was binding on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Excise Rules, 1944 lays down that where an assessee desires to pay the duty under protest, they shall deliver to the proper officer a letter to this effect and give grounds for payment of duty under protest. The party shall also endorse the words Duty paid under protest on all copies of Gate passes, application for removal and RT 12 returns. 6. In this case the Assistant Collector has observed that there is no letter of protest. However, he admits that in a few RT 12 returns, the appellants had endorsed the word under protest . We have perused the xerox copies of such a RT 12 return which has been finalised by the Range Superintendent. On these copies the Superintendent has remarks Protest for payment of duty paid under protest i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orted in 1990 (48) E.L.T. 571 the Tribunal has held following the ratio of the judgment rendered in the case of Andhra Sugar - 1987 (31) E.L.T. 573 (Tri.) = 1986 E.C.R. 272 that the procedure laid down under Rule 233B is only directory and not mandatory. 8. In the case of Roche Products (supra) the Bombay High Court has likewise accepted the protest of letter as due compliance of the provisions of Rule 233B of Central Excise Rules, 1944 and has also held that the Rules are only procedural and cannot be treated as mandatory. 9. In this case the appellants have lodged protest and it is not a case where the appellants have not lodged a protest for payment of duty at all. Therefore, applying the ratio of the judgment in the cases cited abo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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