COMMISSIONER OF CENTRAL EXCISE Vs. ITC LTD

JUDGEMENT

(1.) THE Honourable Chief Justice: this is a reference application on behalf of the revenue under Section 35 H (1) of the Central Excise Act, 1944, by which the following questions have been sought to be referred to us for our opinion. 1. Is the Honble Tribunal right in holding that the payment of duty vide PLA No. 580 dated 27. 10. 92 has not been paid voluntarily?

(2.) CAN the letter OC. No. 1124/97 dated 02. 09. 92 of the Superintendent of Central Excise asking the assesses to reverse an amount of Rs. 5,98,000/- being irregular Modvat credit availed, and other correspondences in continuation, be considered to have raised a dispute since it is not a SCN issued under Section 11 A? Can the Action of the assessee debiting the said amount vide PLA No. 580 dated 27. 10. 92 be considered payment under protest since no letter filed on that date giving any grounds for payment under protest and subsequently also filed no representation for payment made under protest as per sub-rule 5 of Rule 233b? 3. Can the letter of protest dated 31. 10. 92 filed by the assessee can have the retrospective effect of filing protest under Rule 233b? 2. Heard the learned counsel for the parties.

(3.) THE facts of the case have been given in the judgment of CEGAT dated 26. 04. 2002, by which the CEGAT set aside the order of the Commissioner (Appeals), who had rejected the assesses claim for refund. The CEGAT by its order directed that the refund be given to the assessee, unless the duty has been passed on to the consumer.