Consequential refund and protest payment under central excise require independent proof; refund remains examinable for the permissible period.

A refund claim under central excise law must be supported by the assessee's own entitlement and cannot be claimed as a consequential refund merely because a customer succeeded in appeal on exemption. The earlier appellate order only established the principle of exemption; it did not automatically vest refund rights in a different assessee without independent examination of its claim. A plea that duty was paid under protest also failed because the assessee had only expressed an intention to follow the prescribed protest procedure, which was insufficient. Even so, the refund claim was not wholly barred and could still be examined on merits for the permissible six-month period, subject to Section 11B and unjust enrichment.

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Issues: (i) whether consequential refund under Section 11B could be claimed by the supplier assessee though the earlier appellate order was in favour of its customer; (ii) whether the duty payments were made under protest so as to avoid the limitation bar, and if not, whether the refund claim could still be examined on merits for the permissible period.

Issue (i): whether consequential refund under Section 11B could be claimed by the supplier assessee though the earlier appellate order was in favour of its customer

Analysis: The earlier appellate order only established, in principle, that clearances of carbon dioxide to the customer were eligible for exemption. However, the refund claim of the present assessee had to be tested on its own footing. Consequential refund arising from the earlier appellate decision did not automatically extend to the present assessee merely because the customer had succeeded in appeal. The claim therefore could not rest solely on the theory of suo motu refund flowing from that order.

Conclusion: The assessee was not entitled to claim consequential refund solely on the basis of the appellate order obtained by its customer.

Issue (ii): whether the duty payments were made under protest so as to avoid the limitation bar, and if not, whether the refund claim could still be examined on merits for the permissible period

Analysis: The assessee had only expressed an intention to pay duty under protest and to follow Rule 233B of the Central Excise Rules, 1944. That did not establish that the actual payments were made under protest in the manner required. Even so, the refund claim was not wholly barred. It had to be examined on merits for the period within the permissible six months and in the light of the amended Section 11B of the Central Excises & Salt Act, 1944, including the doctrine of unjust enrichment.

Conclusion: The duty payments were not proved to have been made under protest, but the refund claim remained open for consideration on merits for the six-month period.

Final Conclusion: The appeal succeeded only in part: the claim of protest payment failed, but the refund claim for the admissible six-month period was directed to be considered afresh on merits.

Ratio Decidendi: A refund claim based on protest payment must be supported by compliance with the prescribed protest procedure, and a consequential refund arising from another party's appellate success does not automatically vest in a different assessee without independent examination of its own claim.

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