DENTIFRICES Vs. DEPUTY COMMISSIONER OF CENTRAL EXCISE

JUDGEMENT

(1.) CUSTOMS, Excise and Service Tax Appellate Tribunal, in short CEGAT, Southern Bench at Bangalore has referred three questions of law as directed by this court in C. E. Ref. No2 of 2003, which we have consolidated and redrafted as follows:

(2.) THE applicant, M/s Dentrifices, is the manufacturer of tooth paste and tooth powder. They had cleared certain quantity of their product under the brand name "effermint" by availing the benefits of notification No. 175/86. On the tube and outer packing of the tooth paste, they have inscribed the words "marketed by M/s Tomco, Bombay", Inspector of Central Excise directed the applicant to debit a sum of Rs. 8,89,099/- towards differential duty since applicant has used the above words in their products which constituted use of brand name of another manufacturer who is not eligible for the benefit of exemption under the notification. Direction was duly complied with by the applicant by debiting the said amount in their RG 23a Pt. II account towards the differential duty and intimated the said fact to the Department by their letter dated 12. 07. 1991. In the said letter applicant has stated as follows: "the adjustment is made without prejudice to our representing the matter to the higher authorities. Subsequently, they filed a refund claim on 02. 06. 1992 for the above amount. The Assistant Collector rejected the refund claim of the appellant on the ground that the refund claim was filed after the statutory time limit for filing refund claim under Section 11-B of the Central Excise and Salt Act, 1944," Applicant aggrieved by the order of the Assistant Collector filed appeal before the Collector of Central Excise. Appeal was rejected stating that the letter does not indicate that the applicant was paying the duty under protest and since they had not complied with the requirement of Rule 233b the refund claim was barred by time. Applicant took up the matter before the CEGAT and the Tribunal also confirmed the finding of the lower authorities and dismissed the appeal.

(3.) SRI E. R. Venkateswaran, counsel appearing for the applicant submitted that there is a complete misreading of the letter dated 12. 07. 1991. Counsel submitted that a reading of the above letter would show that applicant had protested and such a protest would fall within the four corners of Rule 233b of the Central Excise Rules, Counsel referred to the several decisions of the apex court, viz. , Maf M/s Samrat Internation (P) Ltd v. Collector of Central Excise (1992 Supp. (1) S. C. C 293) Mafatlal Industries Ltd v. Union of India (1997 (5) S. C. C 536), Coastal Gases and chemicals Pvt. Ltd v. Assistant Collector of Central Excise (1997 (7) S. C. C. 223), MRF Ltd v. Collector of Central Excise (2004 (2) S. C. C. 417), The India Cements Ltd v. The Collector of Central Excise (AIR 1989 S. C. 1496) and Indian Piston Ltd v. Collector of Central Excise (AIR 1990 S. C. 977 ).