Protest against excise duty accepted through written objections, defeating limitation on the refund claim

Written objections in the assessee's letters were treated as a valid protest against differential excise duty on transportation, insurance, handling and delivery charges. Rule 233B was applied as a procedural safeguard, so the absence of a prescribed form did not defeat substantial compliance. Because the duty was held to have been paid under protest, the six-month limitation under the refund provision did not bar the claim, and the refund issue had to be decided on merits by the authority concerned.

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Issues: (i) Whether the assessee's letters dated 5-10-1995 and 5-12-1995 amounted to lodging of protest for the purpose of the second proviso to Section 11B(1) of the Central Excise Act, 1944 and Rule 233B of the Central Excise Rules, 1944; (ii) Whether the refund claim could be rejected as time-barred.

Issue (i): Whether the assessee's letters dated 5-10-1995 and 5-12-1995 amounted to lodging of protest for the purpose of the second proviso to Section 11B(1) of the Central Excise Act, 1944 and Rule 233B of the Central Excise Rules, 1944.

Analysis: The letters expressly disputed the levy of differential duty on transportation, insurance, handling and delivery charges and recorded a clear objection to the departmental demand. The requirement under Rule 233B was treated as procedural and not to be construed narrowly or hyper-technically. The absence of a prescribed form of protest did not defeat the substantive fact that the assessee had recorded dissent in writing. The communications were held to constitute substantial compliance with the rule and to amount to protest.

Conclusion: The letters dated 5-10-1995 and 5-12-1995 amounted to lodging of protest in favour of the assessee.

Issue (ii): Whether the refund claim could be rejected as time-barred.

Analysis: Under the second proviso to Section 11B(1), the limitation of six months does not apply where duty has been paid under protest. Since the assessee had lodged protest and the payment was treated as made under protest, the refund claim could not be dismissed solely on limitation. The matter of refund on merits was left to the authority concerned.

Conclusion: The refund claim could not be rejected as time-barred, in favour of the assessee.

Final Conclusion: The referred questions were answered for the assessee, the protest was held to be duly lodged, and the refund matter was restored to the authority concerned for decision on merits and in accordance with law.

Ratio Decidendi: Where duty is shown by clear written objection to have been paid under protest, Rule 233B must be applied as a procedural safeguard and substantial compliance is sufficient to attract the bar of limitation under the refund provision.

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