TaxTMI 
TaxTMI 
1989 (7) TMI 223
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.... under Item No. 68 of the First Schedule to the Central Excises and Salt Act, 1944 (the Schedule is referred to hereinafter as the CET and the said Act as 'the Act'). The respondents filed a claim in the Assistant Collector's office on 19-7-1982 for refund of the duty paid as aforesaid, on the ground that the classification of the goods under Item No. 68, CET was wrong. They further contended that they had been paying duty all along under protest and so the limitation in Section 11B of the Act would not apply. The Assistant Collector dismissed the claim as barred by limitation under Section 11B of the Act, as well as on the merits of the dispute. The matter was carried in appeal before the Collector (Appeals) who, in his impugned order, not....
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....cence was taken, there was no evidence of protest till 9-7-1982. The provision regarding saver of limitation in cases of payments of duty under protest was not in existence prior to 6-8-1977 and, therefore, even if duty had been paid under protest, such saver of limitation was not available during the pre 6-8-1977 period. 4. Shri Lachman Dev, for the respondents, submitted that prior to 1981 when a specific rule regarding protests was inserted in the Central Excise Rules, 1944, there was no prescribed procedure for payment of duty under protest. However, as could be seen from the annexures to the (so-called) "Cross-objection", the respondents had protested against the levy from the very beginning. He further submitted that the Ayurvedic ....
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....em 68 was attracted and that any clearance of the goods without obtaining a licence and without payment of duty would invite penal action. Thereupon, on 5-5-1975, the respondents applied for Central Excise licence under protest. Deposit challans dated 15-9-,1975, 27-8-1975, 3-10-1975, 18-10-1975 and 28-11-1975 also are marked "under protest"', 7. In the case of Collector v. India United Mills (supra), the gate passes bore the endorsements "duty paid under protest" but there were no reasons nor any letter to the Central Excise authority as to why the duty was being paid under protest. Nor were the debits in the PLA under protest. The respondents did not also raise any dispute about the rate of duty after receipt of the Superintendent's le....
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....all these do not add up to payment of duty under protest, we fail to see what does. In the circumstances, we are of the view that the refund claim in the present case was not barred by limitation. 10. Prior to the insertion of Rule 233B in the Central Excise Rules, 1944, by Notification No. 115/81, dated 11-5-1981, there was no procedure statutorily prescribed for registering protest against duty payments. What is important, in our view, is that there should have been a protest setting out the reasons therefor. This, there has been in the present case. In the case of Western India Plywood Ltd., Baliapatam v. CCE, Cochin -1986 (23) E.L.T. 227, the manufacturer had lodged a letter of protest on 8-7-1963 (before 1977 and 1981) contending th....