Refund under protest and limitation in provisional assessment: Rule 233B compliance was treated as directory, preserving the claim.

Refund could not be denied for non-compliance with Rule 233B where the classification list remained unapproved, a show cause notice had been issued, and duty was paid during a disputed classification period; the payment was treated as effectively under protest and the rule was regarded as directory rather than mandatory. The claim was also not time-barred because limitation under Section 11B ran from the relevant final assessment or adjustment in the case of provisional assessment. Refund was therefore maintainable.

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Issues: Whether refund of duty could be denied for non-compliance with Rule 233B of the Central Excise Rules, 1944 when the classification list had not been approved and the duty was effectively paid under protest, and whether the refund claim was barred by limitation.

Analysis: The classification list filed by the assessee had not been approved, a show cause notice had been issued, and the duty was paid during the period of disputed classification. In these circumstances, the payment was treated as provisional in nature and the assessee's intention to pay under protest was considered clear, even if all formalities under Rule 233B were not followed. The procedural requirement under Rule 233B was treated as directory and not mandatory for denying refund where protest was otherwise evident. The claim was also supported by the principle that limitation under Section 11B of the Central Excises and Salt Act, 1944 would operate from the relevant final assessment or adjustment in a case of provisional assessment.

Conclusion: The refund could not be denied on the ground of non-compliance with Rule 233B, and the refund was not held time-barred.

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