PARLE BISCUITS PVT. LTD. Vs. COMMISSIONER OF CUSTOMS

JUDGEMENT

(1.) THE short point involved in these appeals is that Commissioner (Appeals) has rejected the refund claims filed by the appellants in respect of duty paid by them at the time of presentation of the Bill of Entry which was disputed and later on allowed by the Commissioner (Appeals) with regard to dispute relating to classification. While the appellants claimed that since the assessment order was contested by them disputing the duty liability the payment of duty has to be treated as paid under protest and therefore the time -bar should not be applicable. The Commissioner (Appeals) on the other hand held that as per Supreme Court decision in Mafatlal Industries case reported at specially Paras 83, 84 and 86 it is obligatory that for payment of duty under protest the procedure under Rule 233B of the Central Excise Rules, 1944 should be followed.

(2.) HEARD both parties.

(3.) THE learned advocate for the appellants submitted that whenever an appeal is filed against the assessment order, the duty has to be treated as been paid under protest and placed reliance on the CEGAT decision in the case of Hutchisom Max Telecom Pvt. Ltd. v. Commissioner of Central Excise, Mumbai where it was held that filing of appeal itself amount to protest and refund is not to be denied on grounds of limitation when disallowance of benefit of notification challenged by appellant and Such benefit finally allowed by Tribunal. It was submitted that in their case the classification claimed by them which was rejected by the original authority has been upheld by Commissioner (Appeals) and therefore the refund cannot be denied on grounds of limitation. Reliance was also placed on the Tribunal decision in the case of G.S. Radiators v. Commissioner of Central Excise, Ludhiana where a similar view was taken.