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TMI Blog2003 (10) TMI 429X X X X Extracts X X X X X X X X Extracts X X X X ..... 23/81, dated 2-6-81. However, during the period in question, they were clearing the goods on payment of duty pending approval of their unit as 100% E.O.U. The appellants claimed the refund of duty paid during the period from 1-4-92 to 12-5-94 under their Refund Application dated 3-8-94. The said Application was returned back to them with directions to file the claim in a prescribed form. The same were subsequently filed on 28-3-95. 1.2. The appellants were issued a show cause notice proposing denial of the claim on the ground that the same was barred by limitation. The said show cause notice was adjudicated by the Assistant Commissioner who by taking the date of filing as 28-5-95, rejected the claim as hit by limitation. On an appeal against the same, the Commissioner (Appeals) accepted the appellants contention that the very first letter dated 3-8-94 has to be considered relevant for the purposes of deciding the limitation, but observed that inasmuch as the same is also beyond the normal period of limitation of six months, the refund claim cannot be sanctioned. Accordingly, he upheld the Order of the original adjudicating authority. Hence the present appeal. 2. Shri V. Sridha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by subsequent reminder. In the said reminder, the appellants sought guidance for the procedure to be followed by them. There is no utterance of the fact of payment of duty under protest in the said letters. The appellants have contended that though there is no express assertion in the said correspondence to pay duty under protest, but the very fact that the appellants were claiming the benefit of Notification No. 123/81 which exempts 100% E.O.U. from payment of duty, should be considered as duty having been paid under protest. 7. However, we do not find any merits in the above contention of the learned Advocate. The appellants were clearing the goods on payment of duty during the relevant period being fully aware that on grant of 100% E.O.U. status, they would be entitled to the benefit of Notification No. 123/81. Another question is that they were only pressing the authorities for grant of early registration as 100% E.O.U., inasmuch as on its registration, they would be able to avail the benefit. In one of the two letters, they also sought guidance of the Revenue to clear their goods pending decision on their 100% E.O.U. status. However, while seeking guidance to such procedu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich they had made their intention clear to avail the benefit of exemption Notification as also on the fact that the gate passes for the relevant period had the endorsement of the duty having been paid under protest. In the present case, though the appellants repeatedly asserted that the 100% E.O.U. registration be granted to them urgently so as to entitle them to avail the benefit of the Notification in question, they never indicated that during the pendency of such registration, they would be paying the duty under protest. As contra to the Precision Drilling decision (supra) there is nothing on record to show the of endorsement of any duty paying document or record with the expression, under protest . 10. The appellants have also referred to the Tribunal s decision in the case of Delta Industries Ltd. v. Collector of Central Excise, Calcutta reported in 2001 (134) E.L.T. 112(Tri. - Kolkata), wherein the Tribunal observed that the appellants were forced by the Department to procure the duty paid-back sheets for use in the 100% E.O.U. and thereby preventing them from availing the benefit of Notification No. 123/81-C.E. We find that the facts in that case were entirely different f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t any person claiming of refund of any duty has to make an application before the expiry of six months from the date of payment of duty. As per second proviso to sub-section (1) of Section 11B, the limitation of six months shall not apply where any duty has been paid under protest. Rule 233B of the Central Excise Rules, 1944 prescribes the procedure for paying duty under protest. As per this Rule, the assessee. has to deliver a letter for paying duty under protest giving the grounds thereof, an endorsement Duty paid under protest shall have to be made on all gate passes RT-12, either appeal is to be filed or he has to make a representation within three months of the delivery of the letter of protest and on service of the decision, he shall have no right to deposit the duty under protest. In the present matter the appellants have placed reliance on two letters dated 5-10-95 and 5-12-95 which according to them were letters of protest. On a perusal of these two letters, we agree with the submissions of the learned S.D.R. that these letters only conveyed their point of view and these were not in effect letters of protest as the appellants continued to make payment of duty for subse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It is meant to obviate any dispute whether the payment is made under protest or not. The sentence following this, reproduced in Shree Shyam Filament has to be read in this context. It does not support the view that unless the provisions of Rule 233B are fully complied with duty cannot be said to have been paid under protest. Where it is clear either from the conduct of the assessee or from its communication, that it disputes the payment of duty, the duty must be considered to have been paid under protest and the limitation of six months will then not apply. The Supreme Court itself has, in paragraphs 83 and 86 referred to two methods of payment of duty under protest - where a person proposes to contest the liability to duty by way of appeal, revision or in the higher courts or when the duty is paid under the orders of courts, therefore it is not essential for duty to be paid under protest, with the formal protest as specified in Rule 233B has to be launched. 14. Having said this, it is not possible for me to conclude that the appellant before us has indicated in any manner its intention to pay duty under protest. The entire correspondence between the appellant and the departmen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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