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TMI Blog1998 (5) TMI 255X X X X Extracts X X X X X X X X Extracts X X X X ..... continued to pay duty under protest vide their letter No. K/CEX/AHD/HD, dated 10-6-1982. After the introduction of 1985 Tariff Act from 28-2-1986 department suggested to classify glass frit as enamel frit under sub-heading 3207.90. Appellants were not aware of description of products, fully under the 1985 CETA, and they were paying duty under protest prior to 28-2-1986. They submitted classification list under protest effecting from 1-3-1986, and it was approved by the department without any objection. Appellants were advised that correct classification is under 3207.10. They filed classification list from 1-12-1986 steel and glass frit under 3207.10 and it was approved on 20-4-1987. Since the duty was assessed under 3207.90 prior to 1-12-1986 which was not applicable, Appellant submitted refund claim on 27-7-1987 for the duty amount of Rs. 13,540.50 paid from 11-3-1986 to 3-8-1986. Assistant Collector rejected it ex parte unilaterally on the basis of the orders in appeal regarding the classification of glass frit under erstwhile Tariff Entry of the First Schedule to the Central Excise Tariff Act, 1944 (Item No. 23a(b) of Tariff another glass). On appeal by the Appellant, it was s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 11B of CEA - Deemed protest - In cases of pending decrees and orders, it must be deemed that the duties were paid `under protest within the meaning of second proviso to clause (1) of Section 11B of CEA to enable the assessee to file fresh application for refund under Section 11B(2) and Order Nos. 554 and 555/96, dated 19-9-1996 in E/2473/87-D and E/1262/89-D in the case of CCE, Ahmedabad v. M/s. Gujarat Machinery Manufacturers. Ltd. and vice versa. Paras 7 to 9 of Delhi Bench holding that frit is classifiable under Tariff Item 23A(4) and refund claim should be kept abeyance till the classification issue pending before Supreme Court at the instance of the party is decided. 6. Procedure to pay duty under protest under Rule 233B of Central Excise Rules is (a) delivery to the Range Officer a letter stating the fact of payment of duty under protest, at that time only and to the grounds for it, (b) obtain his acknowledgment by a letter in proof of payment of duty under protest from the day of delivery of letter to him, (c) make endorsement duty paid under protest in all copies of gate pass application for removal, returns, etc.; (d) within 3 months after delivery of letter of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by any other such class of applicants notified in the Official Gazette by Central Government Notification can be issued only when Government is satisfied that incidence of duty has been passed on by the person concerned to any other person. Refund shall be made only in accordance with the above, notwithstanding to the contrary conformed in any judgment, decree, order or direction of the appellate Tribunal or any court or any other provisions of this Act or rules made thereunder or any other law for the time being, under Explanation refund and relevant date are explained under A and B (a to f), which are not material. In the light of above legal position, the present case is considered below, in the light of the submission of both sides and records. 8. The admitted fact in the case is that the Appellant, sent a letter of protest on 10-6-1982, prior to CET Act, 1985, showing the ground of payment of duty under protest to the Superintendent, Central Excise, Karmaad, Range III, expressed their grievance against the order of C.C.E., Baroda, classifying frit under Item No. 23A(4), and preferring revision thereon and getting stay order, and pending filing and decision of the revision, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rit was approved on 20-4-1987 after verification on 8-12-1986 by Inspector and Superintendent. But, the classification dispute under 1944 Act still survives as per the orders of Delhi Bench of CEGAT, dated 19-9-1996 between the parties with respect to same goods glass frit. According to it CA No. 117/84 is pending before Supreme Court, and the refund claim cannot be finalised till the above case is disposed of, at the instance of the same Appellant, under his letter dated 28-10-1986 after the period covered in this case viz. 1-3-1986 to 3-8-1986; That case was for the period 1-3-1975 to 14-2-1980. Tribunal has held that as the very basis of refund is in dispute as to correct classification of glass frit refund has to wait the decision in CA 117/84. But in this case, it is not the position. The dispute pertains to different period for different classification under different Act. Earlier classification under 3207.90 by the department under which glass frit was classified, for which duty is paid, was changed to 3207.10 at the claim of the Appellant by the department. So this case need not await the decision in CA 117/84. Refund can be granted. But the question is whether limitation a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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