Pre-existing protest remains valid under Rule 233B, so refund cannot be denied for later procedural non-compliance.

A protest lodged before the introduction of Rule 233B of the Central Excise Rules, 1944 remained effective after the rule came into force, because the rule was procedural and did not extinguish a pre-existing protest. Refund could not be denied merely for want of a fresh protest after 1-6-1981 where the earlier protest had already supported refund for the prior period and the duty was recovered despite classifications later found in the assessee's favour. The principle applied was that later procedural formalities do not defeat substantive refund entitlement on an unsustainable levy, so the refund claim was allowed.

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Issues: Whether a protest lodged before the coming into force of Rule 233B of the Central Excise Rules, 1944 continued to be valid after that rule came into force, so as to entitle the appellant to refund for the later period notwithstanding non-compliance with the formalities under Rule 233B.

Analysis: The protest had been lodged before Rule 233B was inserted and had already supported grant of refund for the earlier period. The rule was treated as inapplicable to the period prior to its commencement, and its procedural requirements were not treated as defeating a pre-existing protest. The decision relied on the view that Rule 233B is procedural in character and that a prior protest remains effective after the rule came into force. The refund arose from orders classifying the goods in the appellant's favour, so the duty recovered during the relevant period could not be retained merely because no fresh protest was filed after 1-6-1981.

Conclusion: The protest was held to remain valid for the later period as well, and the refund claim was allowed in favour of the assessee.

Final Conclusion: The appellant succeeded on the question of refund entitlement, and the duty recovered for the disputed period was directed to be refunded with consequential relief.

Ratio Decidendi: A protest lodged before the commencement of a subsequently introduced procedural protest rule continues to operate as a valid protest, and refund cannot be denied solely for non-compliance with that later procedural formality when the underlying levy is otherwise unsustainable.

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