TNEB, TIRUNELVELI ELECTRICITY Vs. CCE

JUDGEMENT

(1.) THE appellant, M/s. Tamilnadu Electricity Board (TNEB) had submitted refund claims to the Department for a total amount of duty of Rs. 28,29,718/ - for the period from 1986 to March 1994. Refund claim to the extent of Rs. 16,46,558/ - was sanctioned by the original authority and the rest of the claim was rejected as time -barred under Section 11B of the Central Excise Act. The said authority found that the claim for refund of the duty paid for the period from 24.10.1986 to 8.1.1991 was time -barred. In the appeal preferred by the assessee, learned Commissioner (Appeals) found that the claim for refund of duty [Rs. 10,96,505/ -] paid for the period from 17.10.1986 to 22.6.1990 had been filed only on 28.3.1991 and the same was time -barred as their letter of protest dated 16.11.1990 in respect of payment of duty had been received by the Superintendent of Central Excise only on 19.11.1990. In respect of the remaining period, it was found that their refund claim for the period up to 18.11.1990 was also time -barred for want of valid protest. The claim for refund of duly paid for the period from 19.11.1990 was allowed by the appellate authority, having found that such duty had been paid under protest in terms of Rule 233B of the Central Excise Rules 1944 vide assessee's letter received by the Superintendent of Central Excise on 19.11.1990. In the result, the assessee's appeal was only partly allowed by learned Commissioner (Appeals).

(2.) IN the present appeal, TNEB is aggrieved by the rejection of the refund claim for the period up to 18.11.1990. Their consultant submits that, for such period, all the payments of duty were under protest as evidenced by the relevant endorsements made on TR -6 Challans. A few specimens of such challans have been shown to us and we have seen the remark "under protest" in these challans covering payments of duty for the early part of the period of dispute. It is argued that the above remark made in the duty -payment documents would substantially satisfy the requirement of Rule 233B ibid. In this connection, reliance is placed on Final Order No. E/1387/98 dated 4.9.98 passed by a coordinate Bench of the Tribunal in the appellant's own case. We have heard learned SDR also, who reiterates the findings of the Commissioner (Appeals).

(3.) WE have considered the submissions. In the cited final order, the Bench was remanding the case to the original authority for ascertaining whether duty had been paid under protest. Incidentally, it observed that procedural lapses should not come in the way of substantial justice, an observation made with reference to Rule 233B ibid. It is this part of the final order, which has been relied on by learned consultant today. The gist of arguments of learned consultant is that all payments of duty for the period of dispute were made under protest, that this fact has not been rebutted by learned Commissioner (Appeals), that the sine qua non of Rule 233B was satisfied and, therefore, it should be held that the refund claim in question was not hit by time bar. We are unable to accept this argument for want of the requisite ground in the memorandum of appeal. Had there been factual details in the memo of appeal, we would have entertained any legal plea based on such facts. Unfortunately, in this ease there is no plea whatsoever in the memo of appeal, except long drawn arguments on who was liable to pay duty on RCC poles, whether TNEB or their contractor.