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TMI Blog2001 (7) TMI 346X X X X Extracts X X X X X X X X Extracts X X X X ..... 20-1-1998; that the Appellants debited the said amount in their RG 23C, Part-II on 20th January itself; that by a letter dated 20-4-1998 they informed the Assistant Commissioner regarding debit of duty and also mentioned that refund would be claimed of this amount; that subsequently, the Appellants found that except two items involving total credit of Rs. 6,579/- all the capital goods have been duly declared by them, and accordingly, they filed a refund claim for Rs. 5,71,263/- on 24-9-1998; that the Asstt. Commissioner under Adjudication Order No. 74/99, dated 15-3-1999 rejected their claim holding that a broad declaration of the capital goods is not sufficient for the purpose of Rule 57T. The Assistant Commissioner also rejected their refund claim as time-barred holding that the letter of protest was filed after affecting the payment of duty; that on appeal the Commissioner (Appeals) also rejected their appeal only on the question of limitation without going into the merit of the matter holding that the Appellants had failed to follow the procedure prescribed under Rule 233B of the Central Excise Rules and letter of protest dated 20-4-1998 is an after thought and subsequent to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave not only endorsed the RT-12 Return with the words 'Under Protest', they have also indicated so in RG-23C Part-II and filed a letter of protest. Reliance was also placed on the decision in the case of Paros Laminates Pvt. Ltd. v. C.C., New Delhi, 2000 (123) E.L.T. 651 (Tribunal) wherein it was held that if there was a substantial compliance with the provisions of Rule 233B and the Appellants had staked their claim or recorded their protest in any form, the relevant facts are required to be taken into consideration while deciding the issue of time-bar. Finally he relied upon the decision in the case of Straw Board Mfg. Co. v. C.C.E., Meerut, 2000 (115) E.L.T. 231 (T). 3. Countering the arguments Shri C.L. Mehar, learned SDR, submitted that the Appellants reversed the Modvat credit in January, 1998 whereas the refund claim was filed by them only in September, 1998 which is beyond the period of 6 months specified under [Section] 11B of the Central Excise Act, and as such the refund claim is barred by time-limit; that the letter dated 20-4-1998 merely gives an intimation of debiting the duty in RG 23C Part-II and their intention to claim refund of the said amount without ment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Rules are that (i) an endorsement "duty paid under protest" shall be made on all copies of gate passes, RT-12; (ii) in case where remedy of appeal is available the assessee may file an appeal within the period of specified in the Act, or (iii) in other cases the assessee within 3 months of the delivery of the letter of protest may file a detailed representation. In the present matter the duty was debited on 20-1-1998 without submitting any letter of protest to the Asstt. Commissioner. The only letter which has been given to the Asstt. Commissioner is dated 20-4-1998 in which the Appellants mentioned about payment of duty and their intention to claim refund. A perusal of this letter reveals that there is nowhere mentioned that the duty was paid under protest. Further, there no reason given as to why they will claim the refund of the duty debited by them. The refund claim was filed in September, 1998. The only place where it was mentioned that duty was paid under protest was in RG 23C Part-II when the duty was debited. It has been claimed by the learned Advocate that mentioning of payment of duty under protest in RG 23C Part-II is the substantial compliance of provisions of Rule 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he reason for denying the refund was that the letter of protest had not been submitted to the proper officer and as such it was not found to be valid. The Tribunal in this case held substantial compliance as the letter of protest had been delivered to the Suptd. and in view of this fact it was held by the Tribunal that Rule is directory and substantial compliance is sufficient. I am of the view that substantial compliance cannot be merely endorsement on the RG 23C, Part-II. A letter of protest is must. This is apparent from the findings in Jay Chemical Industries case itself wherein the Tribunal observed that Commissioner (Appeals) proceeded on the basis that detailed representation should have been filed as contemplated under Sub-rule (5) of Rule 233B. The Tribunal has considered this question in Guest Keen William Ltd. v. C.C.E., Bangalore, 1997 (89) 209 (T). The Tribunal held that a detailed representation would naturally require when the earlier protest was a mere protest without giving reasons, but the letter of protest contained detailed reason in support of the protest, and therefore, rejection of protest on account of absence of detailed representation was not sustainable. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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