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TMI Blog2005 (9) TMI 566X X X X Extracts X X X X X X X X Extracts X X X X ..... with the Commissioner (Appeals), wherein they contended that the limitation prescribed under Section 11B of the Central Excise Act was not applicable to them as they had endorsed their protest in the TR 6 Challans pertaining to payment of the duty. The appellate authority accepted this contention and allowed the refund claims. Hence the present appeals of the Revenue. 2. The appellant is represented by ld. SDR. No representation for the respondents despite notice, nor any request of theirs for adjournment of hearing. Ld. SDR has reiterated the grounds of the appeals. She has argued that any expression of protest while paying duty, during the material period, should have been made strictly in terms of Rule 233B of the Central Excise Rul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee who desired to pay duly under protest should deliver to the proper officer a letter to that effect and obtain acknowledgement thereof. The scope of the rule was examined by a bench of nine Judges of the Hon ble Supreme Court in para 85 of their judgment in Mafatlal Industries Ltd. v. UOI [1997 (89) E.L.T. 247 (S.C.)]. The said para 85 reads as under :- 85. The rule no doubt requires the assessee to mention the grounds for payment of the duty under prostest but it does not empower the proper officer, to whom the letter of protest is given, to sit in judgment over the grounds. The assessee need not particularise the grounds of protest. It is open to him to say that according to him, the duty is not exigible according to law. All ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h endorsement, however, did not fulfil the requirement of Rule 233B. The appellants have relied on just one sentence - It is open to him to say that, according to him, the duty is not exigible according to law in para 85 of the Apex Court s judgment to contend that their declaration under Rule 173B claiming that Spent Catalyst was not excisable was tantamount to protest for the purpose of Rule 233B. They have, obviously, misconceived or misquoted the ratio decidendi of the Apex Court s judgment. The vital part of para 85 ibid, which embodies the ratio, reads thus Any person paying the duty under protest has to follow the procedure prescribed by the Rule and, once he does so, it shall be taken that he has paid the duly under protest. T ..... X X X X Extracts X X X X X X X X Extracts X X X X
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