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TMI Blog2006 (10) TMI 330X X X X Extracts X X X X X X X X Extracts X X X X ..... sing cotton and viscose fibre. In the process of manufacture, they used to get blended waste in respect of which the Department had insisted them to reverse the credit of inputs. The dispute whether such credit had to be reversed was finally settled vide Final Order No. 877/2003, dated 28-10-03 of this Tribunal, wherein it was decided that the assessee was not required to reverse input credit on clearance of waste arising in the course of manufacture of final product, in terms of Rule 57D of the erstwhile Central Excise Rules, 1944. During the pendency of the appeal against the order of the jurisdictional Commissioner directing the assessee to reverse the credit relating to the inputs in the waste generated, the assessee had paid duty to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er protest in these cases. The assessee s appeal was not allowed only as regards the one claim in respect of which no protest was lodged. 4. The Department has come up in appeal against the impugned order allowing refund of Rs. 4,88,480/-. In this case the assessee had debited the amount from RG 23A and intimated the Department about their protest in seven days and obtained acknowledgement. Ld. SDR reiterates the arguments contained in the appeal memorandum and relies on the decision of the apex Court in Mafatlal Industries Ltd. [1998 (89) E.L.T. 247 (S.C.)] case to the effect that any person paying duty under protest had to necessarily follow the procedure prescribed under Rule 233B to consider the payment to have been made under protest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ule 233B of the Central Excise Rules, 1944 for the reason that protest was lodged subsequent to payment. Ld. SDR submitted that the principle of merger did not apply in this case in view of the ratio of the apex Court s judgment in Mauria Udyog Ltd. v. CCE, Delhi-II [2002 (146) E.L.T. 37 (S.C.)]. In the above judgment the apex Court had ruled that the assessee s appeal could not be dismissed by application of principle of merger as the Revenue had obtained a decision against the original order from the appellate authority as regards the reduction of penalty whereas the assessee s appeal had challenged the entire order. She also relied on the apex Court judgment in the case of Kunhayammed v. State of Kerala [2001 (129) E.L.T. 11 (S.C.) = 200 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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