TaxTMI 
TaxTMI 
1994 (12) TMI 171
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....anufactured, quantity and value and their clearances outside the factory and the quantity in balance. In their reply dated 30-11-1976, they had contended that excise duty was not payable by them. It was, however, stated by them that as the department was emphasising the necessity of obtaining a licence, they were submitting the application for issue of licence for the workshop under protest. This was acknowledged by the Superintendent of Central Excise, Raipur. These letters would indicate that the appellants were compelled to pay the duty though they considered the goods to be not excisable. These letters had not been submitted earlier by them before the departmental authorities due to mistaken legal advice. As these letters were in existence at the relevant time, it has been pleaded that these may be permitted to be taken into consideration. 2. Shri L.P. Asthana, learned advocate appeared for the applicants. He referred to the aforesaid submissions contained in the application. He then referred to the affidavit of Shri B.C. Nema, advocate who was representing them earlier. In the affidavit he had confirmed that he had advised the applicants to file a refund claim as duty had b....
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.... the submissions made by both the sides. We find that Rule 10 of CEGAT (Procedure) Rules, 1982 lays down that the appellant shall not, except by leave of the Tribunal, urge or be heard in support of any grounds not forth in the memorandum of appeal. Further, the Tribunal in deciding the appeal shall not be confined to the grounds set forth in the memorandum of appeal or those taken by leave of the Tribunal. Such a decision is subject to the condition that the Tribunal shall not rest its decision on any other grounds unless the party who may be affected thereby has had sufficient opportunity of being heard on such grounds. Examining the present case from the above angle, we find that in the grounds of appeal in their appeal memorandum, the appellants had urged that in view of the fact that the duty was paid under a mistake of law and that a licence was obtained under protest, there was absolutely no warrant in holding that the provisions of Section 11-B would apply. This is the only mention in their detailed appeal spanning fourteen pages of the word protest. Even that reference was to their obtaining a licence under protest. In the same sentence in which the obtaining of a licence ....
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....raised by them. In so doing, we take note of the fact that they had in their letter addressed to the Inspector of Central Excise tentatively referred to their impression that payment of excise duty may not be applicable to them though they had not effectively followed up this stand to warrant a finding that they had paid the duty under protest. 4. Having allowed the ground of payment of duty under protest to be taken by them, we proceeded to hear Shri Asthana in the matter. He submitted that on merits there are several decisions in their favour. Their activity did not give rise to any excisable goods. Among the several decisions cited in the appeal for this proposition, he referred to the Tribunal decision in Aruna Industries v. CCE, 1986 (25) E.L.T. 580. Though they had relied upon several judgments of different High Courts for their contention that limitation would not be applicable where duty has been paid under a mistake of law, Shri Asthana fairly conceded that in view of the Supreme Court judgments in the Miles India Ltd., 1987 (30) E.L.T. 641 (SC) and Doaba Cooperative Sugar Mills, 1988 (37) E.L.T. 478 (SC) cases, the position is well settled that statutory authorities ha....
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....partmental authority and which was protested against by them as seen from their Letter dated 30-11-1976 constituted payment of duty under protest. In view of this protest, their refund claim is not hit by the bar of limitation, contended Shri Asthana. Proceeding further and without prejudice to his main argument as above, the learned counsel raised an alternative plea that as the refund claim also covered payment of duty during the six months period immediately preceding the date of their lodging the refund claim, refund of the amount of the duty paid during the said period would, in any case, be admissible to them. He, however, reiterated in conclusion his plea for allowing the appeal. 5. The plea raised by Shri Asthana were strongly opposed by Shri K.K. Jha, learned Senior Departmental Representative. He submitted that the documents filed with the miscellaneous application cannot be admitted as these had not been verified by the department. Moreover the letter of the appellants which is dated 30-11-1976 was addressed to the Inspector and not to the Assistant Collector, the competent officer to decide classification and dutiability as well as protests. That apart, the most impo....
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.... in reply to his letter dated 29-11-1976 can be considered as laying the foundation for paying duty under protest. Though the word protest is there such protest had been lodged with reference to applying for Central Excise licence. Even if it is held to be applicable for payment of duty, the ground, therefor, as spelt out therein was only the fact of their having been set up by the Madhya Pradesh Electricity Board for fabrication of towers structures etc. in connection with power supply in the State of Madhya Pradesh. No duty exemption being available on the said ground, the protest in question cannot sustain their subsequent refund claim lodged on the ground that such fabrication did not amount to manufacture of excisable goods and that they fell outside the Tariff classification of Item 68. We accept the plea raised by Shri Jha, learned Senior Departmental Representative in this regard. Even in the India Cements case decided by the Honourable Supreme Court which was heavily relied upon by Shri Asthana, it has come out (in para 7 of the report) that the appellants therein had raised many objections against the levy of packing charges. It was stated by them that duty on packing cha....
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....ess to the counsels of both the sides for ably presenting their respective cases with appropriate case law. Our particular appreciation goes to the learned Senior Departmental Representative, Shri Jha. At very short notice, he had to contend with a strong argument, undaunted by the judgments of the highest judicial authority of the land when he was quickly able to find out the distinguishing features thereof as compared to the present case and make his pertinent submissions which enabled us to decide this case involving a high amount of more than Rupees Two crores, properly, according to us. Dated : 15-11-1994 Sd/- (K. Sankararaman) Member (T) 9. [Assent per : S.L. Peeran, Member (J)]. - While agreeing with my ld. brother for dismissal of the appeal for a period beyond six months, I wish to add as follows : (i) The appellants vide a misc. application No. 702/93-B2 filed before the Tribunal (i) a letter dt. 29th Nov., 1976 addressed by the Inspector, Central Excise, Raipur, M.P., by which the Inspector wrote to the appellant and informed them that the goods namely structures and fabricators for towers, sub-stations manufactured in the Central Workshop f....
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....v) Apart from the above correspondence, there is not a single piece of evidence produced or even an affidavit of any responsible person filed to show that the goods were cleared under protest after obtaining the licence. Further, the above documents had not been relied till date, before the lower authorities. In that view, these documents would become a fresh plea and inadmissible for consideration. However, in the ends of justice, even if the letter dated 30-11-1976 is taken into consideration, what follows from it is that the appellant had initially stated that they were obtaining the licence under protest. But there is nothing to show that after the reply dated 30-11-1976 of the Supdt., the appellant presisted in persuing the protest for obtaining the licence. To protest for taking a licence is one thing and to make payment of duty on protest is another matter. There is absolutely no evidence of whatsoever nature of payment of duty under protest or even of taking licence on protest, after the reply of the Supdt. The appellants have not produced the copies of classification list, or other documents to show that they had filed the same under protest and that the goods were also re....