SCIENTIFIC SALES Vs. COMMISSIONER OF CENTRAL EXCISE

JUDGEMENT

(1.) M /s. Scientific Sales have filed this appeal against Order -in -Appeal No. 89/2003, dated 31 -3 -2003 by which the Commissioner (Appeals) has rejected their refund claim being time -barred.

(2.) SHRI K.K. Anand, learned Advocate, submitted that the Appellants manufacture Oscilloscope and other measuring instruments and avail of Modvat credit of the duty paid on inputs; that when the Central Excise Officers visited their factory on 29 -1 -95 they found that RG -23A, Part II register has been maintained up to date but Part I register was incomplete; that as per the direction of the officers the appellants debited Modvat credit in Part II register on 1 -1 -96 amounting to Rs. 83,814/ - under protest; that they also submitted a letter dated 3 -1 -96 to the Supdt., Central Excise (Preventive) wherein it is mentioned that the Modvat credit has been debited by them under protest; that subsequently on advice that the Modvat credit was not to be reversed they filed a refund claim on 6 -8 -96. The Asstt. Commissioner under Adjudication Order No, 16/97, dated 19 -5 -97 rejected their refund claim on the ground that they had not fulfilled the conditions specified under Rule 233B of the Central Excise Rules, and therefore, reversal of Modvat credit cannot be treated as have been made under protest; that the Commissioner (Appeals) also, under the impugned Order, has rejected their appeal holding that it cannot be said that the reversal of Modvat credit was made under protest. The learned Advocate, further, submitted that the amount debited by them was not any duty payment but pre -deposit during investigation as per insistence of the officers; that they had filed a protest letter immediately after debiting the duty and other provisions of Rule 233B could not have been followed in the present matter as the question was under investigation by the Department; that in any case it has been held by the Tribunal in C.C. v. Ashok Mfg. Co., 1990 (48) E.L.T. 571 that the provisions of Rule 233B are only directive and not mandatory and refund claim cannot be denied for non -fulfilment of such procedure.

(3.) THE learned D.R. Shri S.C. Pushkarna reiterated the findings as contained in the impugned Order.