TaxTMI 
TaxTMI 
1990 (5) TMI 127
X X X X Extracts X X X X
X X X X Extracts X X X X
....h him in respect of Gate Passes not stamped with the endorsement "Under Protest". The Collector (Appeals) held in his impugned order that the contention of the Assistant Collector was correct in terms of Rule 233B of the Central Excise Rules, which clearly provides that an endorsement should be made on the gate pass that duty had been paid under protest. He went on to add that if the appellants had not made such indication, the assumption that the clearances were made without protest would be justified. 2. The appellants were represented by Shri K.K. Banerjee, learned Advocate, when the appeal was heard. He submitted that the appellants had been paying duty under protest on their products which were wrongly classified by the department u....
X X X X Extracts X X X X
X X X X Extracts X X X X
....provisions of Rule 233B which had come into effect only from llth May, 1981 whereas the refund claimed relates to payment of duty during the period April, 1978 - September, 1978 and the provisions of Rule 233B could not obviously be fulfilled for such clearances. If the endorsement "Under Protest" was not there in the Gate Passes during the particular period, it cannot be presumed that duties were paid without protest. As has been correctly contended in the appeal, the requirements of Rule 233B which was introduced in May 1981 cannot be applied to assessments made during 1978, which form the subject matter of the present appeal. Hence the findings of the Collector have got to be set aside. But the matter needs to be looked into closely to s....
X X X X Extracts X X X X
X X X X Extracts X X X X
....se at that stage (emphasis added). He, however, added that if the classification was revised later on due to any reason involving any refund of duty paid by them they should make the application for refund in the prescribed form supported by the duty paying documents. 5. We find that the Assistant Collector had not passed any order leading to the present appeal whereby he had rejected any claim as time-barred, not being saved in that regard due to payment of duty under protest. He had written a letter dated 25-2-1984 proposing to deduct a sum of Rs. 33,811.18 from the sum of refund due to them due to "Payment of duty under T.I.15A without under protest". This letter brought forth their reply dated 3-4-1984 wherein they invited his attent....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... made available by the appellants in their appeal papers. He passed an order with reference to the retest reports issued by the Chief Chemist, Central Revenues Control Laboratory, for 13 products for which samples were drawn for. But this order was passed by him on their representation claiming that silicone fluids including oils emulsion, and silicone greases manufactured by them are not classifiable under Item 15A. They had also referred to the Trade Notice issued by the Collectorate regarding the scope of Tariff Item 15A, which, they claimed, excluded their products from the scope thereof. 6. All this would go to show that the appellants had staked the claim for classification of their product under Item 68, which also found acceptanc....