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TMI Blog2012 (12) TMI 175X X X X Extracts X X X X X X X X Extracts X X X X ..... pellants were admittedly not required to pay the said duty and the refund claim does not pertain to the routine payment of duty in the ordinary course of the business where such refund claim requires scrutiny from the angle of limitation as also from unjust enrichment angle – refund allowed - E/259/2009-SM(BR) - 341/2012-SM(BR)(PB) - Dated:- 19-3-2012 - Ms. Archana Wadhwa, J. REPRESENTED BY : Shri Abhishek Jaju, Advocate, for the Appellant. Shri K.P. Singh, SDR, for the Respondent. [Order]. After hearing both the sides duly represented by Shri A. Jaju, learned advocate and Shri K.P. Singh, learned SDR, I find that the appellant is engaged in the manufacture of various photographic chemicals. It is seen that they were cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... how cause notice issued to the appellant for denial of refund claim, the original adjudicating authority observed as under : I find in this case the refund application dated 18-7-2003 filed by the noticee was within one year of passing the Order-in-original date 1-7-2003. Mere not filing it in a proper format is only procedural and condonable omission which cannot vitiate the legitimate claim of the noticee. Further since the amount deposited by the noticee was before the confirmation of the demand and that too on the persuasion of the department, therefore, it was in the nature of deposit and not duty. Besides this, while intimating the payment particulars the noticee has also clearly mentioned that the deposits has been made under prot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irectly applicable to the issue in dispute. The appellants have admittedly lodged their protest and there is no dispute about the same. The procedural law is always subservient to and is in aid to justice delivery. Interpretation of the same so as to deny the substantial benefit of law to the assessee cannot be held to be aim of such procedural laws. As such, apart from holding that provisions of Rule 233(B) were not directly applicable to the present situation, I find that deposit having been made under protest, the period of limitation would not apply. 7. Even when viewed from other angle, the appellants had deposited the said payment, when there was no confirmation of demand. Even subsequent to the said deposit, no show cause notice st ..... X X X X Extracts X X X X X X X X Extracts X X X X
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