2017 (6) TMI 755

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.... The same issue for earlier period 1991-92 was decided by the Commissioner (Appeals) vide order in appeal No.443/CE/DHL/94 dated 1.9.1993. On the basis of this order of the Commissioner (Appeals), the appellant had filed refund claim on 10.3.1999. Refund claim was rejected by the Assistant Commissioner, aggrieved from which the appellant filed an appeal before the Commissioner (Appeals). The appeal was also rejected. Both authorities rejected the refund claim on the ground of limitation as the appellant did not file letter of protest under Rule 233B of Central Excise Rules, 1944. The appellant went in appeal before the Tribunal who vide Order dated 3.2.2005 allowed the appeal and remanded the matter back to the adjudicating authority. In co....

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....mits that at the given time, there was specific provision in the Central Excise Rules which prescribed the procedure for lodging the protest and intimation was to be given to the proper officer. Since the procedure under Rule 233B had not been followed, the protest marked on the gate passes and invoices was in compliance of the prescribed procedure. He relied on the judgement of this Tribunal in the case of Gujarat State Fertilizers and Chemical Vs. CCE, Vadodara - 2004 (166) ELT 193 (Tr-.Del.) 4. Heard both parties and perused the records. 5. The undisputed facts in this case are that the refund claim filed on 10.3.1999 on account of addition of margin of profit @ 10% for the period from 1.8.1993 to 31.8.1996. At the time of filing o....

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....ility by way of appeal, revision or in the higher courts, he would naturally pay the duty, whenever he does, under protest. It is difficult to imagine that a manufacturer would pay the duty without protest even when he contests the levy of duty, its rate, classification or any other aspect..." That being the categorical observation of the Supreme Court, the same is squarely applicable to the facts of the present case in favour of the assessee, wherein also, the payment of duty was made only during the pendency of appeal against very levy of duty for the earlier period. 8. In other case reported in (2004) 13 SCC 113 = 2003 (157) E.L.T. 500 (S.C.) [Dena Snuff (P) Ltd. v. Commissioner of Central Excise, Chandigarh] relied on ....

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....e's own case finally decided by the Tribunal i.e. on 28-8-2003. Nevertheless, it is held that the payment of duty was made under protest was within time and no limitation was applicable to the refund claim of such duty and refund was hence ordered and the same was also upheld by the Supreme Court. 9. Thus, the facts involved in both the cases decided by the Supreme Court were identical and the Supreme Court, while dealing with the issue relating to period of limitation, uniformly held that no limitation was applicable to the payment made under protest. The Hon'ble Supreme Court in the earlier judgment clearly observed that the payment made, when the assessee has been challenging the earlier levy of duty, is deemed to be under p....