Pre-deposit refund on successful appeal: filing the appeal itself amounts to protest, so limitation does not bar the claim.

A pre-deposit made under section 35F for pursuing an appeal is refundable when the assessee succeeds in the challenge to the demand. Filing the appeal itself constitutes protest, so a separate formal letter of protest under Rule 233B is not required and the six-month limitation for refund claims does not bar a refund arising from the appellate outcome. The refund may still remain subject to unjust enrichment where otherwise applicable, but it was not time-barred on these facts and was correctly sanctioned.

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Issues: Whether refund of duty/deposit made pending appeal was barred by limitation for want of a formal protest and whether a separate letter of protest was necessary when the assessee had challenged the demand in appeal.

Analysis: A deposit made under section 35F is in the nature of a pre-deposit for the purpose of pursuing an appeal and is refundable when the assessee succeeds. In such a situation, the filing of an appeal against the demand itself amounts to protest, so the absence of a formal letter under Rule 233B does not attract the six-month limitation for refund. Refund arising from an appellate order is not treated as time-barred merely because the claim is made later, though the principle of unjust enrichment may still be relevant where otherwise applicable.

Conclusion: The refund claim was not barred by limitation and no separate formal protest was required; the refund was correctly sanctioned.

Ratio Decidendi: Where duty is deposited during the pendency of an appeal against the demand, the appeal itself constitutes protest and the refund flowing from success in appeal is not defeated by the ordinary limitation applicable to refund claims.

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