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TMI Blog2004 (1) TMI 79X X X X Extracts X X X X X X X X Extracts X X X X ..... katarama Reddi and S.H. Kapadia, JJ. [Judgment per : S.H. Kapadia, J.]. - Being aggrieved by majority decision dated 5th January, 1996 of the Customs, Excise and Gold (Control) Appellate Tribunal, South Regional Bench at Madras in Appeal No. E/436/90/MAS, the original assessee has come by way of appeal under Section 35L of Central Excise and Salt Act, 1944. By the impugned judgment and order, the assessee's claim for refund of Rs. 13,18,184.88 paid as differential duty on 6th April, 1987 in relation to period 1-3-1986 to 31-10-1986 came to be dismissed on the ground that it was paid voluntarily and suo motu and that the alleged protest was not in terms of Rule 233B of Central Excise Rules, 1944. 2.Appellants manufacture "Vulcanising Solution" at their factory in Madras. On 3rd March, 1986, appellants filed the classification list under sub-heading 4006.90 carrying rate of duty at 15%. The said list was approved on 10-7-86. Appellants paid the duty at 15% accordingly from 1-3-86 onwards. However, on 28-10-86 the Assistant Collector visited the appellant's factory and directed the appellants to give a revised classification list for the aforestated product under sub-heading ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontended that the appellants had been paying excise duty @ 15% till 31st October, 1986 based on an approved price list. However, on a visit by the Assistant Collector on 28th October, 1986, the appellants were informed that they were required to pay the excise duty @ 40% and accordingly the appellants were directed to pay the differential duty. That thereafter on 31st March, 1987 the Assistant Collector had issued a show cause notice asking the appellants to show cause why duty @ 40% should not be demanded denying the benefit of Notification No. 377/86 for all past clearances. That consequently the assessee paid the duty amount on 6-4-87, pending conclusion of adjudication proceedings initiated vide show cause notice dated 31st March, 1987. That the differential duty was paid accordingly on 6-4-87 amounting to Rs. 13,18,184.88 for the period 1-3-86 to 31-10-86 and while making the said payment an endorsement was made on the challan indicating payment under protest. It was further pointed out that after making payment under protest on 6-4-87, a letter was also addressed by the appellant to the Assistant Collector in reply to the show cause notice dated 31st March, 1987. In the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t submitted that the appellant in this case seeks to fall under the proviso to Section 11B(1). He submitted that on their own showing the appellant applied for refund of differential duty for the period 1-3-86 to 31-10-86 vide refund application dated 10th August, 1988 purporting to comply with Rule 233B. He contended that in this case Rule 233B has not been complied with by the appellants as the payment was made on 6-4-87 for the period 1-3-86 to 31-10-86 whereas Rule 233B required payment of duty preceded by a letter of protest. It was pointed out that in the present case payment was made on 6th April, 1987 and it was not preceded by protest letter. That on the contrary the letter of protest was lodged after payment on 6-4-87, hence there was non-compliance of Rule 233B(1). That on the date of payment there was no protest. It was further argued on behalf of the Department that under Rule 233B(4), the duty paid under protest shall be endorsed on the copies of the gate passes and on RT-12 returns. That in the present case since the clearances have been made there was no question of endorsement of the gate passes and RT-12 returns and, therefore, there was no non-compliance of Rule ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yable to the applicant without his having to make any claim in that behalf. 7.In the normal course, two points would have fallen for determination, whether in the facts and circumstances of the case, the Tribunal was justified in holding that the payment of differential duty of Rs. 13,18,184.88 cannot be regarded as payment made under protest and, therefore, the refund was not admissible by virtue of the time bar under Section 11B of the Act and whether in the facts and circumstances of the case, the Tribunal was right in holding that compliance of Rule 233B of Central Excise Rules, 1944 was a condition precedent to the applicability of the proviso to Section 11B(1) of Central Excises Salt Act, 1944 (as it stood at the relevant rime)? 8.The above two points are inter-linked and it has bearing on the core issue whether the duty was paid under protest. In this case the Tribunal has relied upon Rule 233B in support of its view that in order to put a protest payment the conditions and circumstances mentioned in Rule 233B should be complied with, otherwise there could be no protest payment under the Act. On this reasoning the Tribunal denied refund to the appellants. However, ther ..... X X X X Extracts X X X X X X X X Extracts X X X X
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