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TMI Blog2015 (11) TMI 88X X X X Extracts X X X X X X X X Extracts X X X X ..... case is that there was a parallel proceeding against appellant wherein issue of classification of their final product is under dispute. On that issue the Adjudicating Authority confirmed classification by deciding classification under T.I. 15-AA and confirmed demand of duty Rs. 4,62,460/-. On appeal by the appellant in the classification case then the Collector, Central Excise (Appeals) Bombay vide Order-in-Appeal No. HN-2122/TH-371/85 dated 7/1/1986 upheld the said order of the adjudicating authority and held that product was correctly classified under T.I. 15-AA. Subsequently, appellant filed refund claim for Rs. 13,14,449/- for the period from 31/8/1982 to 28/1/1986. Meanwhile department filed appeal before CEGAT. Tribunal vide order No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hin six months from the date of receipt of the Writ order from the Court. Accordingly, the adjudicating authority rejected the refund claim on the ground that the appellant has passed on the incidence of duty to their customers. Being aggrieved by the said adjudication order, the appellant filed appeal before the Commissioner (Appeals), who rejected the appeal of the appellant on the ground of unjust enrichment vide the impugned order dated 16/5/2005, therefore the present appeal. 3. Shri. Vishal Agarwal, Ld. Counsel for the appellant submits that in case of first show cause notice dated 17/7/1989 revenue sought to reject the refund claim on the ground of unjust enrichment which was travelled up to Commissioner (Appeals) and the Commission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceedings in the show cause notice of the present case is vitiated and the rejection of refund on the ground of limitation is not sustainable. Without prejudice, he submits that refund arises due to settling of classification dispute, therefore when matter was disputed by the department on classification that itself is the ground that duty was paid by the appellant under protest. It is settled position in law that when the contention of the department is not acceptable to the appellant and appellant contest the same in the process of adjudication and further appeal by the Appellant itself is amount to protest. Excise duty paid during such litigation shall be treated as payment under protest, therefore in the appellant's case also it cannot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the refund claim on the ground of unjust enrichment. As regard the limitation on which refund claim was rejected, he submits that since limitation has not been verified in the first round therefore before sanctioning, vital aspect of limitation has to be considered, therefore Asstt. Commissioner first time, before disposal of the claim verified aspect of limitation and found that appellant has not complied with the procedure of the Rule 233(b) for the purpose of payment of duty under protest. Therefore Ld. Lower authority was correct in rejecting the refund on the ground of unjust enrichment and also on limitation. 5. I have carefully considered the submissions made by both sides. 6. In the impugned order the refund was rejected explicitl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Appeals), it is clear that the refund which was rejected on the ground of unjust enrichment by the original authority vide order dated 13/9/1989 has been allowed by setting aside the Order-in-Original. It is undisputed that after this order in appeal dated 24/4/1990, the Revenue has not filed any appeal against the said order dated 24/4/1990 therefore same attained finality. Thereafter by way of another show cause notice the Asstt. Commissioner again raised point of unjust enrichment and the same was adjudicated against assessee and Commissioner (Appeals) upheld the same vide impugned order. I am very clear in my mind that such proceedings is absolutely non est and infructuous for the reason that once the issue has been settled by the Com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded, present refund arise in respect of excess duty paid. The appellants contest on the classification itself is expression of protest and in my view no separate procedure for payment of duty is required to be carried out. The concept of under protest is not mere procedural formality but essence payment under protest is that the assesee's expression of protest should be informed to the department. I am of the view that the contest on the issue which is the cause for payment of duty is better expression then mere filing a letter. Therefore, in my view excess duty payment made for which refund is sought for, is 'under protest'. Moreover, I have gone through the classification list of the year 1982 wherein the appellant in the classification ..... X X X X Extracts X X X X X X X X Extracts X X X X
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