1989 (4) TMI 80

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....t paid under protest and therefore, the claim of refund is barred by time. 2. The brief facts necessary for determination are : The appellant-company is a manufacturer of superfine cement. The company preferred the claim for refund of Rs. 22,43,002.09 alleged to be duty on price of packing material of the aforesaid product paid during July 4, 1974 to March 1, 1975. 3. This claim of refund was rejected by Assistant Collector of Central Excise Tirunelveli on the ground that Rule 11 of the Central Excise Rules, 1944 was applicable as duty was not paid under protest and the claim was barred by time. On appeal, the Appellate Collector of Custom and Central Excise by the judgment dated February 7, 1981 maintained the order passed by the Ass....

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....er dated June 11, 1974. The letter raised many objections against the levy of packing charges. It was stated that the duty on packing charges on superfine cement was not leviable. The appellant finally said :- "If the department feels that the duty is leviable on packing charges, we have no option, but to suggest the rates fixed by the Government of India from quarter to quarter, as packing charges." 8. The counsel also referred to us the decision of the Central Government in the case of Birla Cement Works where a similar claim was allowed by order dated December 31, 1980. Counsel further referred to us the Trade Notice dated October 29, 1979 issued by the Collectorate, Madras wherein it was clearly indicated that the costs of packing....

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....ted December 31, 1980 in the case of Birla Cement Works gave the benefit without any Trade Notice. There it was observed :- "In the circumstances Government accepted the petitioner's pleas and observe that superfine cement is nothing other than ordinary portland which is grounded to a very high fineness of not less than 3500 CM 2/gm and that this higher fineness does not lead to its deterioration without packing. The Government, therefore, accept the contention of the petitioners and hold that the impugned good being capable of being sold without packing like ordinary gray portland cement the cost of packing for superfine cement should not be added to the assessable value." 12. The authorities ought to have extended the view taken by ....