Duty paid under protest can preserve refund rights where written correspondence shows a consistent dispute over liability.

A duty payment may qualify as made under protest for refund purposes where the assessee has consistently disputed liability in writing and the surrounding correspondence supports that position. Rule 233B of the Central Excise Rules, 1944, cannot be applied in a narrow or hyper-technical manner to defeat the proviso to Section 11B(1) of the Central Excise Act, 1944. On that approach, the refund claim was not barred by limitation. The plea of unjust enrichment remained dependent on the factual question whether the duty burden had been passed on.

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Issues: Whether the assessee's refund claim was barred by limitation under Section 11B of the Central Excise Act, 1944, or whether the payment of duty was made under protest so as to attract the proviso to Section 11B(1).

Analysis: The payment was made after repeated correspondence between the assessee and the department, and the materials on record showed that the assessee had consistently disputed liability while asserting entitlement to Modvat credit. The Court held that Rule 233B of the Central Excise Rules, 1944, cannot be read in a narrow or hyper-technical manner so as to defeat the statutory proviso to Section 11B(1). A protest in writing, judged in substance and from the surrounding circumstances, was sufficient. The finding that the payment was under protest was one of fact, supported by evidence and not shown to be perverse. The plea of unjust enrichment was left to be examined on the factual question whether the duty had been passed on.

Conclusion: The refund claim was not time-barred, as the duty was paid under protest, and the reference was liable to be rejected.

Ratio Decidendi: A payment of duty is to be treated as made under protest when the protest is evidenced in writing and established by the surrounding correspondence and circumstances, and Rule 233B cannot be construed so technically as to curtail the proviso to Section 11B(1) of the Central Excise Act, 1944.

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