Payment under protest during levy challenge prevents limitation bar on refund, even without strict Rule 233B compliance.

Duty paid while the levy itself was under challenge was treated as payment under protest, so the refund claim was not barred by limitation for alleged non-compliance with Rule 233B of the Central Excise Rules, 1944. The Tribunal held that where the assessee was contesting the same levy for an earlier period, payment during the pendency of that challenge carried the character of protest, and the Revenue could not defeat refund solely on the basis of the formal protest procedure. The objection on limitation therefore failed, the order rejecting refund was set aside, and relief was granted to the assessee.

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Issues: Whether the refund claim was barred by limitation for want of compliance with the protest procedure under Rule 233B of the Central Excise Rules, 1944, where duty had been paid during the pendency of proceedings challenging the earlier levy.

Analysis: The refund claim related to duty paid for a period when the assessee's challenge to the same levy for an earlier period was still pending. The Tribunal noted that the assessee had marked documents as duty paid under protest, but more importantly held that when duty is paid while the levy itself is under contest, such payment is deemed to be under protest. On that basis, the Tribunal followed the principle that limitation does not operate against a refund claim for duty so paid, and rejected the Revenue's objection based on non-compliance with the protest procedure.

Conclusion: The refund claim was not barred by limitation and the objection based on Rule 233B failed.

Final Conclusion: The order rejecting refund was set aside and the appeal was allowed in favour of the assessee.

Ratio Decidendi: Duty paid during the pendency of a challenge to the very levy is treated as payment under protest, so a refund claim founded on such payment is not defeated by limitation merely because the formal protest procedure was not strictly followed.

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