1986 (1) TMI 322

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....id period. After adjudication, the Assistant Collector of Central Excise, Tirunelveli granted refund of Rs. 35,822.82 rejecting the claim in respect of the balance as barred by time under Rule 11 of the Central Excise Rules, 1944. On appeal, the said order was confirmed by the Appellate Collector of Central Excise, Madras by order dated 13-1-1981. The appellants had preferred a revision to the Government of India against the said order which, on transfer, is now being dealt with and disposed of as an appeal before this Tribunal. 2.  We have heard Shri D.N. Kohli, Consultant for the appellants and Shri B.R. Tripathi, Senior Departmental Representative for the Department. 3.  The appellants had been all along claiming before t....

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....antiated though they have said in their appeal that they would produce documentary evidence in this regard which is not forthcoming. In other words, the Assistant Collector's finding that no such letters were available for the months other than those particularised in the impugned order has to be upheld." 5.  Thus it is seen that the lower authorities had allowed the refund claim in respect of such periods when, according to them, duty had been paid under protest and had disallowed the claim only with reference to such payments as were, according to them, not under protest. Before us also Shri Kohli contended that all payments by the appellants were under protest and that in fact they had delivered letters repeatedly mentioning that....

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....owledged under signature dated 25-3-1970. Therefore, there cannot be any dispute about this letter having been received by the department. The terms of this letter have been extracted supra. They clearly set out that the appellants were claiming exemption from payment of duty in respect of these second hand drums and that they were claiming a general exemption in respect thereof and in the said way they were claiming that they were not liable to the duty. In the circumstances, the payment of duty thereafter cannot but be termed as payment under protest. In fact the claim for refund may itself be deemed to have been made at the time of the later payments as the appellants were claiming that they were not liable to make these later payments. ....