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TMI Blog2005 (3) TMI 134X X X X Extracts X X X X X X X X Extracts X X X X ..... 0-92 has not been paid voluntarily? 2. Can the letter OC. No. 1124/97 dated 2-9-1992 of the Superintendent of Central Excise asking the assessees to reverse an amount of Rs. 5,98,000/- being irregular Modvat credit availed, and other correspondences in continuation, be considered to have raised a dispute since it is not a SCN issued under Section 11A? Can the Action of the assessee debiting the said amount vide PLA No. 580 dated 27-10-1992 be considered payment under protest since no letter filed on that date giving any grounds for payment under protest and subsequently also filed no representation for payment made under protest as per sub-rule 5 of Rule 233B? 3. Can the letter of protest dated 31-10-92 filed by the assessee. can have t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5,98,944/- on 25-7-1995, which had been expunged on 27-10-1992. The refund claim was rejected on the ground that the same was time barred under Section 11B of the Central Excise Act, 1944. 5. Section 11B of the Central Excise Act, 1944, as it stood at the relevant time, provided for a period of limitation of 6 months for filing refund claims. However, the proviso to Section 11B(1) states that the above limitation shall not apply where any duty has been paid under protest. 6. The stand taken by the Department was that since the assessee expunged the credit on 27-10-1992 without any protest on that date, the refund claim made by it was barred by limitation and the proviso to Section 11B(1) does not apply. 7. The Tribunal reversed the judg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Union of India [1997 (89) E.L.T. 247 (S.C.) = 1997 5 SCC 537]. We have carefully perused Paragraph-94 of the judgment, and in our opinion does not help the case of the Department. The observation in the said paragraph "any person paying the duty under protest has to follow the procedure prescribed by the rule" does not mean that Rule 233B could be construed in a narrow, pedantic or hyper technical manner. In our opinion Rule 233B, as interpreted by the decisions of the Supreme Court referred to above, only mean that substantively there has to be a protest in writing. In the present case, the CEGAT has admitted the correspondences between the assessee and the revenue, and in our opinion that is the substantive protest in writing. 10. On co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t control the full effect of the proviso to Section 11B(1). A rule made under the Act cannot limit a provision in the Act itself. It is well settled that a rule made under an Act will not be valid if it conflicts with or is in derogation to a section in the Act vide [C.I.T v. S. Chinappa Mudaliar, AIR 1969 SC 1068]. Hence a rule should not be construed in a manner that it conflicts with a Section of the Act. 15. The Supreme Court has been consistently taking the view that the procedure under Rule 233B should not be treated in an over technical manner. In India Cements Ltd. v. Collector of Central Excise, 1989 (41) E.L.T. 358 (S.C.), the Supreme Court observed :- "A perusal of the letter dated June 11, 1974 clearly shows that all possible ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing that since the factory of the Electricity Board had not yet been licensed under the Central Excise Act and the Rules to manufacture the said goods the Divisional Engineer at the Central Workshop was requested to supply the particulars in respect of the goods manufactured in the factory. The said details was sought in order to enable the Excise authorities to recover the Excise duty on the goods that were being manufactured in the Central Workshop which according to him were liable for payment of Excise duty. In reply to the said letter, the Divisional Engineer, Central Workshop, in his letter dated 30-11-1975 took the stand that the Central Workshop at Bhilai was undertaking the fabrication of transmission line towers and the sub-statio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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