AI Drafter 
TaxTMI 
TaxTMI 
TaxTMI 
2015 (7) TMI 958
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....greeing to the stand of the department, the appellant accordingly, filed a declaration under Rule 173B of the Central Excise Rules, 1944 (hereinafter referred to as the Rules) in the prescribed proforma. In the remark column, the appellant mentioned: "We do not agree with the contention of the department that our product is classifiable under sub-heading 3305.99. Therefore, we shall pay duty whatever is applicable on product under protest under Central Excise Rule 233B for which we have filed separately a letter to this effect to the Assistant Commissioner, Central Excise Moradabad." In addition to the above, the appellant issued a letter dated 24th December, 1996 to the Assistant Commissioner, Central Excise Division, Moradabad indicating that the manufacture of shampoo does not attract central excise duty under Chapter heading 3305.99 and the conclusion drawn by the Central Excise department treating the said product as an excisable good was not tenable in law. The appellant in the said letter accordingly prayed that they may be permitted to avail the provisional assessment to duty under Rule 9B of the Rules till the case was finally decided. The appellant also informed the....
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.... of Khadi and Village raw materials namely Sikakai, Amla and Ritha, no central excise duty is payable and the same is sub-judice. 3. In order to resume the business of the manufacture and sale of the above product, and also to comply with the requirements of Central Excise Rules, 1944 we are submitting herewith the declaration of goods produced or manufactured in terms of Rule 173-B of the Central Excise Rules, 1944 for favour of necessary action at your end. 4. As under the above circumstance, it is not possible to determine the correct classification of the goods in question which in our opinion attracts nil rate of duty (being exempted category), it is requested to permit us to avail the provisional assessment to duty under Rule 9B of Central Excise Rules, 1944 till our case is finally decided. Yours faithfully (DENA JEE SANSTHAN) Encls: Declaration in Triplicate. Dated:24.12.96" On 3rd February, 2000, the appellant filed an application for refund of Rs. 9,68,931/- for the period 1st January, 1997 to 31st January, 1998 on the ground that the appellant was entitled for exemption at consessional rate of duty vide Notification No.140/83-CE dated 5th May, 1983. ....
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....riod. The second proviso to Section 11B of the Act stipulates that the limitation of six months for filing the refund claim would not apply where any duty has been paid under protest. According to the appellant, an application was filed indicating that they had deposited the amount under protest and, therefore, the application for refund was not only maintainable but was also within the period of limitation. It was urged that the authorities committed an error in rejecting the claim initially on the ground of limitation and, thereafter, on the ground that the procedure prescribed under Rule 233B of the Rules was not followed. The Deputy Commissioner rejected the refund claim of the appellant on the following grounds: "The letter dt. 24.12.1996 which party has claimed as their letter of protest, they had request only for provisional assessment under Rule 9B and not for duty under protest under Rule 233-B. The party in their declarations under Rule 173-B dt. 31.12.96, has only mentioned the classification dispute whereas in their refund application they have claimed SSI benefits under Notfn. No.140/83-CE dt. 5.5.83. Follow with the ratio of CETAT's judgment in Jain Ceramics....
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....rotest is being lodged and obtain an acknowledgement of the letter of protest. Once the protest is lodged, the depart is duty-bound to pass an order on the protest letter. Since the appellants had not filed protest letter before the competent authority for passing any order, therefore, they cannot claim that they are paying the duty under protest and take benefit of the limitation prescribed for filing the refund claim. I therefore, find no merits in the appeal filed by the appellants and uphold the order of the Commissioner (Appeals). The appeal is rejected." The upshot of the orders of all the authorities is, that no protest letter as per the procedure prescribed under Rule 233B of the Rules was filed by the appellant and that it was mandatory for the appellant to lodge a protest letter as prescribed under Rule 233B of the Rules. Since the same was not done, the appellant was not entitled for the refund and that the said application was barred by limitation. In order to appreciate the submission of the learned counsel for the parties, it would be essential to peruse Section 11B of the Act. For facility, the said provision is extracted hereunder: "11B. Claim for refund of....
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....R.T. 13, as the case may be. (5) In cases where the remedy of an appeal or revision is not available to the assessee against any order or decision which necessitated him to deposit the duty under protest, he may, within three months of the date of delivery of the letter of protest, give a detailed representation to the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise. (6) In cases where the remedy of an appeal or revision is available to the assessee against an order or decision which necessitated him to deposit the duty under protest, he may file an appeal or revision within the period specified for filing such appeal or revision, as the case may be. (7) On service of the decision on the representation referred to in sub-rule (5) or of the appeal or revision referred to in sub-rule (6) the assessee shall have no right to deposit the duty under protest: Provided that an assessee shall be allowed to deposit the duty under protest during the period available to him for filing an appeal or revision, as the case may be, and during the pendency of such appeal or revision, as the case may be. (8) If any of the provisions of this rule has no....
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....otest has to follow the procedure prescribed by the Rule and once he does so, it shall be taken that he has paid the duty under protest. This period of limitation of six months will then have no application to him. 86. We may clarify at this stage that when the duty is paid under the orders of Court (whether by way of an order granting stay, suspension, injunction or otherwise) pending an appeal/ reference/writ petition, it will certainly be a payment under protest; in such a case, it is obvious, it would not be necessary to lodge the protest as provided by Rule 233B." In Commissioner of Central Excise, Chennai-I Vs. ITC Ltd., 2005 (185) ELT 114, the Madras High Court held that Rule 233B cannot be construed in a narrow or hyper technical manner and only a substantial compliance thereof would be sufficient to show that protest had indeed be lodged. The Court observed: "........ The observation in the said paragraph "any person paying the duty under protest has to follow the procedure prescribed by the rule" does not mean that Rule 233B could be construed in a narrow, pedantic or hyper technical manner. In our opinion Rule 233B, as interpreted by the decisions of the Supreme....
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.... under protest with a further prayer to permit the appellant to avail the provisional assessment to duty under Rule 9B of the Rules till the case was finally decided. In the light of the aforesaid letter and the declaration form, we are of a definite opinion that the appellant had established beyond doubt that the appellant had always been contesting the department's claim for levying duty on the product manufactured by them and regularly agitated that no such duty was payable. In our view, if the appellant was disputing the levy of duty and was agitating that no duty was payable and that payment was being made because of insistence of the department to pay under threat of seizure of the product, it cannot be said that payments made by the appellant was not made under protest. We are of the opinion that the assessee had lodged the protest in accordance with Section 11B of the Act read with Rule 233B of the Rules of 1994. The contention of the respondents that the protest as envisaged under Rule 233B, should have been followed and the procedure prescribed under the said rule had not been followed cannot be accepted. The requirement of Rule 233B of the Rules cannot be const....