2008 (6) TMI 456

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....lwar, SDR, for the Respondent. [Order]. - This appeal is directed against Order-in-Appeal No.  P-1/89/2003 dated 12-3-2003. 2. Heard both sides and perused the records. 3. The issue involved in this case is regarding the refund claim of the amount paid by the appellant. The appellants paid an amount of Rs. 54,512/- during the course of investigation and mentioned the sam....

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....icable. The appellant's contention is that while debiting they have debited "under protest". On perusal of PLA it is sent hat the words "paid under protest" are appearing. However, on TR6 challan No. 5 dated 30-10-1995 no such endorsement has been made under which they have deposited the said amount of Rs. 54,512/-. I find that no protest letter was lodged with the Assistant Commissioner in terms ....

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....take away the fact, that the amount has been paid by the appellant 'under protest'. I find that the findings as to no protest letter was lodged with the Assistant Commissioner in terms of erstwhile Rule 233B of Central Excise Rules, 1944, are totally mis­directed as the provisions of Rule 233B would come into play, only when an assessee wishes to pay the duty 'under protest' for the subsequent....

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....llant could have recovered the amount from the customers when he paid the amount on the service of show cause notice for the clearances already made. Both the lower authorities have not disputed the chartered accountant certificate and the affidavit filed by the proprietor. In the absence of any evidence that the amount has been passed on, I find that there is no reason to disbelieve the said cert....