Contemporaneous protest and refund limitation: recorded protest can satisfy Rule 233B, but unjust enrichment must still be examined.

A contemporaneous protest recorded in the statutory registers at the time of credit reversal was treated as sufficient compliance with Rule 233B of the Central Excise Rules, 1944, and a refund application filed within three months was not time-barred on a hyper-technical view of protest. Once the limitation objection failed, the refund claim still had to be examined for unjust enrichment under the first proviso to Section 11B and the presumption under Section 12B of the Central Excise Act, 1944. Because that factual inquiry had not been undertaken, the matter was remanded for fresh determination limited to unjust enrichment.

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Issues: (i) whether the refund claim was barred by limitation in view of the protest recorded at the time of reversal of credit and the subsequent refund application; (ii) whether the refund claim was nevertheless liable to be examined on the touchstone of unjust enrichment and, if so, whether the matter required remand.

Issue (i): whether the refund claim was barred by limitation in view of the protest recorded at the time of reversal of credit and the subsequent refund application.

Analysis: The refund application was filed within three months of the credit reversals. The protest was contemporaneously recorded in the statutory registers at the time of reversal, and such recording was held to be sufficient compliance with the requirement of protest. Rule 233B of the Central Excise Rules, 1944 was construed liberally, and the subsequent intimation did not nullify the earlier protest. On that basis, the rejection of the claim as time-barred was unsustainable.

Conclusion: The refund claim was not barred by limitation and the objection based on absence of valid protest failed, in favour of the assessee.

Issue (ii): whether the refund claim was nevertheless liable to be examined on the touchstone of unjust enrichment and, if so, whether the matter required remand.

Analysis: The lower authorities had not examined unjust enrichment because the claim was rejected on limitation. Once the limitation objection failed, the statutory bar under the first proviso to Section 11B of the Central Excise Act, 1944 and the presumption under Section 12B of the Central Excise Act, 1944 had to be considered. The Tribunal held that the proviso was not excluded merely because the amount had been reversed under protest, and the factual question whether the burden had been passed on required adjudication.

Conclusion: The issue of unjust enrichment was left for fresh determination by the adjudicating authority, and the matter was remanded for that limited purpose.

Final Conclusion: The dismissal of the refund claim on limitation was set aside, but the refund entitlement remained subject to examination of unjust enrichment on remand.

Ratio Decidendi: A contemporaneous protest recorded in the statutory records at the time of payment or reversal of credit can constitute sufficient compliance with Rule 233B of the Central Excise Rules, 1944, and a refund claim filed within the prescribed period cannot be rejected as time-barred on a hyper-technical view of protest.

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