TaxTMI 
TaxTMI 
1988 (2) TMI 175
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....g today, we have heard Smt. J.K. Chander, Departmental Representative for the appellants and Shri D.R. Kohli Consultant for the Respondents. We have also perused the documents. 3. The refund relates to amount paid as duty in respect of fertilizers cleared between 1.3.1969 to 20.8.1969 - same having been manufactured before 28.2.1969 - pre-budget stock. There was no levy of Central Excise duty before 1969 budget on fertilizers and fertilizers were subjected to this levy only with effect from the date of this budget i.e. from 1.3.69. Clearances were however, made after this date between the period as aforesaid. The respondents paid duty under protest. It appears that some writ petitions in this connection were filed and Madras High Court t....
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....e liable to duty, Shri Kohli relied on the M.P. High Court decision in Kirloskar Bros. Ltd. Dewas v. Union of India and two others (1978 E.L.T. J-33). He also drew attention to the fact that SLP filed against this decision by Revenue in Supreme Court was dismissed on merits. He also relied on the following decisions :- 1. M/s. Phosphate Company Ltd. v. Collector of Central Excise, Calcutta 1987 (31) E.L.T. 599 Tribunal 2. M/s. Patel India Pvt. Ltd. v. Union of India & Others AIR 1973 S.C. 1300 = 1983 E.L.T. 1495 (S.C.) 3. M/s. Andhra Fertilizers v. Assistant Collector of Central Excise 1980 E.L.T. 16 AP 4. Commissioner of Sales-tax UP v. Auriaya Chamber of Commerce, Allahabad 1986 (25) E.L.T. 867 (S.C.) 6. In rebuttal, Smt. C....
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....Auriaya Chamber of Commerce's case has observed as under : "Where indubitably there is in the dealer legal title to get the money refunded and where the dealer is not guilty of any laches and where there is no specific prohibition against refund, one should not get entangled in the cobweb of procedures but do substantial justice. The above requirements in this case, in our opinion, have been satisfied and therefore, we affirm the direction of the Additional Judge (Revisions), Sales-tax for refund of the amount to the dealer and affirm the High Court's judgment on this basis". 8. In view of absence of provision like sub-rule (4) referred to above in Rule 11 at the material time, applying the aforesaid decision of the Supreme Court, it ....
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....the question to be answered is that when the appellants had paid duty under protest whether there claim for refund can be taken to be barred by limitation. The Revenue in the present can have not disputed that the duty was paid under protest. I observe that the Tribunal, under similar circumstances in the case of Phosphate Company Ltd. v. CCE, Calcutta [1987 (31) E.L.T. 549] has held as under :- "The appellants have relied on a number of precedents. All of them do not require mention. In Andhra Fertilisers Ltd. Tadepalli v. Asstt. Collector of Central Excise - 1980 E.L.T. 16 (A.P.), a case directly in point, that facts were : the assessee before the revenue authorities resisted the duty when it was demanded by the revenue authorities and....
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....est and only with a view not to incur demurrage charges, unless there was some provision of the Act which debarred the appellant company from recovering it." In the instant case, it would be seen that even before the limitation stipulated in Rule 11 or Rule 173-J had expired, the appellants had protested against the demand and said that they register their claim for refund. At the material time, there was no particular form for registering protest. On the two applications of the appellants, it is common ground that no decision was taken by the authorities. We have already said that there does not appear any reason to disbelieve the appellants when they say that excise authorities were awaiting the decision of Madras High Court in a simil....