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TMI Blog2014 (9) TMI 146X X X X Extracts X X X X X X X X Extracts X X X X ..... -1995 and 5-12-1995 could only be regarded as the letters of protest. - Indisputably, no specific form of protest has been provided in the Rules. - A bare look at the second proviso to sub-section (1) of Section 11B makes it clear that the question of limitation does not arise in the case where the duty has been paid under protest. - Decided in favor of assessee. X X X X Extracts X X X X X X X X Extracts X X X X ..... ule 233B of the Rules was not followed by the assessee. The Commissioner (Appeals) also, under Order-in-Appeal No. 443 (KDT) Central Excise/JPRI/233/2001, dated 5-7-2001, rejected the appeal filed by the assessee on the ground that there was no indication in both the said letters that the duty was being paid under protest. 5. In further appeal filed before the Tribunal, it was contended by the assessee that as per the second proviso to Section 11B of the Act, the limitation of six months for filing the refund claim shall not apply where any duty had been paid under protest; that under the letter dated 5-10-1995, they had recorded disagreement with the levy of differential duty on transportation, delivery charges; and as the Superintendent yet urged them to deposit the duty, they clearly mentioned in their letter dated 5-12-1995 that : 'differential excise duty in case of Transportation/Delivery charges and Insurance Charges is not leviable'; and that these 'are permissible deductions for the calculation of assessable values'. It was also submitted that the Superintendent was requested 'not to insist upon recovery on short levied excise duty amount charged in case of transport ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8-3-2002 [2002 (148) E.L.T. 434 (Tri. - Del.)], dismissed the appeal while agreeing with the submissions of the revenue that the letters dated 5-10-1995 and 5-12-1995 only conveyed the point of view of assessee and were not the letters of protest as they continued to make payment of duty for subsequent clearances also. The Tribunal also observed that even if the set of letters was regarded as that of protests, the appellant had not followed the procedure specified in Rule 233B; and at any rate, substantial compliance of requirement of Rule 233B was not made. The Tribunal also relied upon the observations of the Hon'ble Supreme Court in the case of Mafatlal Industries Ltd. to the effect that the procedure as prescribed under the Rules has been evolved with a view to keep the record of the payment of duty under protest; and that any person paying the duty under protest has to follow the procedure prescribed by the Rules. The Tribunal also referred to the deeming clause in Rule 233B that upon non-observance of the provisions of the Rules, it shall be deemed that the assessee has paid duty without protest. 10. Aggrieved by the order so passed by the Tribunal, the assessee submitt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee only on the ground of limitation, the referred questions deserve to be answered in favour of the assessee and the matter deserves to be restored to the file of the authority concerned. The learned counsel has also referred to a decision of the Hon'ble Bombay High Court in the case of Roche Products Ltd. v. Union of India - 1991 (51) E.L.T. 238 (Bom.). 12. Per contra, the learned counsel for the revenue has referred to the Constitution Bench decision of the Hon'ble Supreme Court in the case of Mafatlal Industries Ltd. (supra) and submitted that the requirement of law is to follow the procedure prescribed by the Rules; and only upon doing so that an assessee could be taken to have paid the duty under protest. According to the learned counsel, the letters in question, even if stating the alleged disagreement of the assessee, do not amount to lodging of protest while following the procedure prescribed by the Rules and when the assessee had paid the duty from 6-12-1995 to 22-10-1997 without a demur, it cannot be said that it had been the payment of duty under protest after following the procedure prescribed by the Rules. The learned counsel has particularly referred to su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... see has paid the duty under protest from the day on which the letter of protest was delivered to the Proper Officer. (4) An endorsement "Duty paid under protest" shall be made on all copies of the gate-pass, the Application for Removal and Form R.T. 12 or Form R.T. 13, as the case may be. (5) In cases where the remedy of an appeal or revision is not available to the assessee against an order or decision which necessitated him to deposit the duty under protest, he may, within three months of the date of delivery of the letter of protest give a detailed representation to the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise. (6) In cases where the remedy of an appeal or revision is available to the assessee against an order or decision which necessitated him to deposit the duty under protest, he may file an appeal or revision within the period specified for filing such appeal or revision, as the case may be. (7) On service of the decision on the representation referred to in sub-rule (5) or of the appeal or revision referred to in sub-rule (6) the assessee shall have no right to deposit the duty under protest : Provided that an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iod 4-7-1974 to 1-3-1975. There had been a communication dated 11-6-1974 from the assessee raising objection that duty on packing charges of superfine cement was not leviable. The Hon'ble Court held that the letter raising all possible contentions against the levy in question was in the nature of protest. The relevant part of the observations and findings of the Hon'ble Apex Court in India Cements Ltd. could be noticed as under :- "7. We heard learned counsel for parties. It is not in dispute that the duty was paid for the period from July 4, 1974 to March 1, 1975. If it was paid under protest, the orders of the authorities cannot be sustained. It is, therefore, necessary to refer to the contents of the letter dated June 11, 1974. The letter raised many objections against the levy of packing charges. It was stated that the duty on packing charges on superfine cement was not leviable. The appellant finally said : "If the department feels that the duty is leviable on packing charges, we have no option, but to suggest the rates fixed by the Government of India from quarter to quarter, as packing charges." ------ ------ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntral Excises Rules, 1944 which lays down the procedure to be followed when duty is paid under protest. The provisions of this rule, however, are of no relevance here because it has not been pointed out to us as to how the appellant has failed to observe this rule in any particular regard so that the provisions of clause 8 of the rule can come into effect. This rule does not prescribe any particular form of protest and hence it is not possible to say on the basis of this rule that the appellant-assessee in this case must be deemed to have paid the duty without protest." 21. It may, however, be observed that so far as the decision in Roche Products (supra) is concerned, the same does not apply to the fact situation of the present case and the questions involved herein for the reason that therein, the duty in question was paid during the period a revision petition was pending before the Government and it was held that once the Revisional Authority set aside the decision of the lower forum, the duty recovered in pursuance of the orders, which were reversed, could not be retained whether paid under protest or without protest. 22. Keeping in view the principles of law applic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iled statement for transportation charges charged in various invoices since April, 1994 to March, 1995 is being prepared." 24. In the next letter dated 5-12-1995, the assessee stated as under :- "With reference to above, your kind attention is invited to our earlier submissions in this matter informing your goodself that differential Excise duty in case of Transportation/Delivery Charges and Insurance Charges is not leviable. These are indeed permissible deductions for the calculation of assessable values. There are several judgments including of Honourable Supreme Court which clearly allow the deductions of Transportations/Delivery Charges and Insurance charges from normal prices. However there is no nexus in recovery of transportation/delivery and insurance charges because excise is leviable on the manufacturing of goods and not on the post clearance expenses. In this connection, we also invite your attention to our letter dated 5-10-1995 and would request you not to insist upon recovery on short levied excise duty amount charged in case of transportation/delivery and insurance charges. Your continues insistence and pressure for recovery of the same would be unjustified a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or record dissent or objection". The dissent, disagreement, and objection of the assessee had been clear, emphatic, unequivocal, and unambiguous in the communications aforesaid. 29. In the case of India Cements Ltd. (supra), the duty was paid from 4-7-1974 to 1-3-1975 but there was an objection stated in the assessee's letter dated 11-6-1974. The Hon'ble Supreme Court found that all the possible contentions, which could be raised against the levy of duty on the value of packing material were raised; and, on an ordinary reading, the letter made it clear that the assessee was not accepting the liability without protest. Such a letter was held to be that in the nature of protest and hence, the question of limitation was held not arising. We are unable to accept the submissions on behalf of the respondent that the principles from the decision in India Cements Ltd. would not be applicable to the present case because the operation of Rule 233B was not in question therein. On the question as to whether a similar nature communication from the assessee amounts to lodging of protest or not, the principles in India Cements Ltd. do apply and cannot be ignored. Viewed in the light of thos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in a narrow or hyper-technical manner; and a substantive compliance thereof would meet with the requirements, so far the question of lodging of protest is concerned. In the ultimate analysis, in the present case, for the purpose of second proviso to Section 11B(1), lodging of protest is required to be held complete by way of the aforesaid two communications dated 5-10-1995 and 5-12-1995. The question No. 2 is, therefore, answered in favour of the assessee. 34. As a necessary corollary, question No. 1 also deserves to be answered in favour of the assessee. A bare look at the second proviso to sub-section (1) of Section 11B makes it clear that the question of limitation does not arise in the case where the duty has been paid under protest. As observed and held hereinabove, the assessee had indeed lodged the protest and made the payment of duty under protest. Hence, its claim for refund could not have been rejected only on the ground of limitation. 35. We would hasten to observe that consideration herein is limited to the questions referred and else, ultimately, whether the claim for refund is to be allowed, wholly or in part, or not, would be the matter for determination ..... X X X X Extracts X X X X X X X X Extracts X X X X
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