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TMI Blog2009 (6) TMI 826X X X X Extracts X X X X X X X X Extracts X X X X ..... nt went to the same Commissioner by a protest letter dated 12-6-99 and that was unheard by that Authority. A copy of that letter is available at page-42 of the appeal folder. The Appellant has brought out its case submitting that it has made deposit of duty under protest and reserved their right to claim refund as well as requested for re-determination of the production capacity excluding length of galleries to save them from suffering. But such prayer is still awaiting decision by the ld. Commissioner, Allahabad. Therefore without disposing the protest letter, the Appellant should not have been denied refund which was categorically claimed in the protest letter itself. Therefore Id. Consultant prays that the appeal may be allowed when the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w. We found an answer to this proposition under Rule 233B of Central Excise Rules 1944. According to sub-Rule (5) of the said Rule where remedy of appeal or refund is not available against a protest letter, remedy of detailed representation is available. We appreciate that the litigant cannot be denied to seek remedy through redressal provisions contained in law. When we perused section 11B of Central Excise Act 1944, there also we find that the limitation of six months shall not apply where any duty has been paid under protest. Considering the statutory remedy available to the litigant under Rule 233B, we are of the view that the Appellant should not be made remediless. When the statute grants a forum of redressal on the protest letter dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be remediless when the authority is not powerless to hear protest letter. Also we hold that even if the ACP determination has not provided an opportunity of hearing, the litigant should not be deprived of such hearing, when an order causes prejudice to his interest. We make it clear that in view of peculiar facts and circumstance and existence of protest letter, final determination of ACP shall be expeditiously made following the decision of Apex Court in the case of S.P.B.L Ltd. (supra). We direct that the ld. Commissioner, Allahabad should hear the matter in respect of final determination of ACP as well as protest of the Appellant in the light law laid down in the case of S.B.P.L. Ltd. and pass a reasoned and speaking order granting fair ..... X X X X Extracts X X X X X X X X Extracts X X X X
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