SHREE SHYAM FILAMENTS Vs. COMMISSIONER OF CENTRAL EXCISE

JUDGEMENT

(1.) IN compliance of the order dated 14 -10 -2003 passed by this Court in D.B. Central Excise Reference Application No. 16/2003 under Section 35H of the Central Excise Act, 1944 ('the Act'), the Customs, Excise & Service Tax Appellate Tribunal, New Delhi ('the Tribunal') has referred the following questions for decision of this Court alongwith the statement of case: - WHETHER in the facts and circumstances of the present case, the CEGAT was right and justified in rejecting the petitioner's refund claim as time -barred.

(2.) WHETHER in the facts and circumstances of the present case, the petitioner's letters dated 5 -10 -1995 and 5 -12 -1995 clearly amount to lodging protest as required in terms of Rule 233B of the Rules. The questions aforesaid have arisen because of a claim made by the applicant -assessee on 25 -6 -1998, seeking refund of the differential duty amounting to Rs. 14,92,578/ - paid by them in respect of the additions on account of transportation, insurance, handling and delivery charges to the assessable value of goods cleared. According to the assessee, the payment in question was under protest whereas, according to the revenue, there was no proper protest with compliance of the requirements of Rule 233B of the Central Excise Rules, 1944 ('the Rules'/the Rules of 1944') -

(3.) THE Deputy Commissioner Central Excise, under Order -in -Original No. 55 -Refund/99, dated 18 -11 -1999, rejected the claim so made by the assessee for refund of the duty as being time -barred, while holding that the letters dated 5 -10 -1995 and 5 -12 -1995, as filed by the assessee with the Department, were not the letters of protests but were merely the letters of disagreement with the Superintendent on various issues; and that the procedure specified under Rule 233B of the Rules was not followed by the assessee. The Commissioner (Appeals) also, under Order -in -Appeal No. 443 (KDT) Central Excise/JPRI/233/2001, dated 5 -7 -2001, rejected the appeal filed by the assessee on the ground that there was no indication in both the said letters that the duty was being paid under protest.