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TMI Blog1998 (2) TMI 209X X X X Extracts X X X X X X X X Extracts X X X X ..... s also contended that they were storing the sugar in outside the godown as provided under Central Excise Rule 57(5) and had been so storing there after making the advance deposit of the amounts of money as directed by the authorities. They also contended that it was the Range Supdt., who had directed the appellants to make the advance deposit of money equivalent to the duty leviable on free sale sugar which they had complied as there was no alternative left for them. The learned Commissioner merely held that the refund related to period 22-2-1992 to 21-5-1992 and the refund claim had been filed on 17-8-1993. He held that the assessment also cannot be said to be provisional as procedure under Rule 9B had not been followed. Even clearance for levy sugar at concessional rate was between 28-11-1992 to 30-1-1993 and as such it was barred by time. 2. In this appeals the appellants contended that the due to shortage of storing space inside the factory premises they had to store 72,740 bags of sugar out of 1991-92 production in outside godowns which could be done under the directions of the Range Supdt. after advance payment of duty at the rate (Rs. 85.00 per quintal) applicable to Free ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Warehousing Corporation Godowns, Bijnor after payment of duty at the rate applicable to Free sale sugar. Therefore, they stored the subject sugar bags of the season 1991-92 in the aforesaid outside godown after making the advance deposit of duty amount from their PLA at Rs. 85.00 per qtl. The total bags numbering 72,740 were kept in the said outside godowns during the period 22-2-1992 to 21-5-1992 after an advance deposit of Rs. 61,82,900.00 through Debit entries in their PLA. Subsequently on receipt of Release Warrants for Free sale sugar from the Sugar Directorate, Government of India, they wrote to the Range Supdt. vide their covering letter No. Lab/91-92/2418, dated 15/16-9-1992 requesting him to forward the enclosed letter of the date to the Collector, Central Excise, Meerut through proper channel. In the enclosed letter they had requested the Collector for permitting them to clear the sugar bags from outside godowns against the Levy sale and allowing them to take credit of the excess amount of duty deposited in advance by them while storing the sugar bags in the said godowns. Again by their letter No. Mfg./92-93/2695, dated 29-9-1992 in response to the Range Supdt. s query ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rities will not annihilate the substantive rights of the assessee. They state that the final assessment having been made on the RT-12 returns for the months of February and March, 1993, the appellant s claim even if treated as filed on 16-8-1993 was within 6 months limitation period. It is stated that both the authorities have not considered their correspondence as claimed for refund and has proceeded only on the fresh claim which is not correct. 3. We have heard the learned Advocate, Shri Bipin Garg for the appellants and the learned JDR, Shri D.K. Nayyar, for the Revenue. 4. It is the contention of the Counsel that what is in deposit was merely advance and not duty, therefore, Section 11B(ii)(b) is attracted and 6 months have to be calculated under Clause (B) of its sub-section (5). The date will arise only from the final assessment made by the Range Supdt. under Rule 9B(5). In this connection, he relied on the judgment of the Calcutta High Court rendered in the case of Nipha Machinery Mfrs. Pvt. Ltd. v. CEGAT as reported in 1994 (71) E.L.T. 680 (Cal.) = 1995 (58) ECR 691, wherein it has been held that if the money paid is not duty, then the refund of the same cannot be gover ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e barred. They have also held that non-following of the protest procedure under Rule 233B is also required to be considered to hold that the demands were time barred. Although in this case there has been no protest letter in the context in which it is laid down in Rule 233B of C.E. Rules. However, the case of the appellants is that the earlier letters referred to are required to be treated as refund claim. It is now well settled that non-following of the procedure under Rule 233B is only a procedural violation and it does not effect the substantive right of claiming the refund. It is also well settled that there [is] no need to file a refund claim in a prescribed form and that is also a mere procedural requirement. Therefore, in the context of all these settled law, we have to consider as to whether the earlier letters dated 15-9-1992 to 29-9-1992 are to be considered as refund letters. 8. In the case of Ex. Engr. Workshop Divn., M.P. Electricity Board v. C.C.E. as reported in 1997 (94) E.L.T. 445 (S.C.), it has been held that a letter written to the inspector protesting to take licence should also be considered as a protest lodged for depositing the duty. The Hon ble Supreme Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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