C.C.E. Vs. PEPSI FOODS LTD.

JUDGEMENT

(1.) THIS Revenue appeal has been filed against the Order of the Commissioner of Excise, Chandigarh, dated 8 -2 -1999 allowing the respondents refund claim of Rs. 20,53,0177 - out of an amount of Rs. 50 lakhs pre -deposited by them after adjusting duty payable on the royalty charges collected by them during the period in question. The refund claim arose consequent to the Tribunal decision, dated 18 -10 -1995 setting aside the duty demand or advertisement expenses. The respondents had pre -deposited the amount of Rs. 50 lakhs on 6 -12 -1994 for the purpose of complying with the provisions of Section 35F of the Central Excise Act, 1944. Consequent to the Tribunal's order setting aside demand of duty on advertisement expenses, they claimed refund with the jurisdictional Assistant Commissioner on 26 -11 -1996. The Assistant Commissioner rejected the refund claim on the ground that the appellants had not paid the duty under protest and had not followed the procedure laid down in Rule 233B of the Central Excise Rules and also for the reason that the refund claim has been filed after the expiry of six months from the date of payment of duty. While allowing the appeal filed by the assessee, Commissioner (Appeals) relied on paragraph 86 of the Apex Court judgment in M/s. Mafatlal Industries v. U.O.I. 1997 (89) E.L.T. 247 .

(2.) SHRI Mewa Singh, ld. SDR appearing for the appellant Commissioner submits that the procedure for refund claim was governed by Rule 233B which stipulates that where an assessee desires to pay duty under protest, he has to deliver to the proper officer a letter to that effect and give grounds for payment of duty under protest and obtain a proper acknowledgement for the letter. No refund of any amount can be granted in case of assessee not following the provisions of Rule 233B. Inasmuch as the Commissioner (Appeals) has sanctioned the refund in the instant case where the respondents had not complied with the requirement of Rule 233B, the impugned order was not legal and proper and needed to be set aside.

(3.) SHRI Pragyan Sharma, ld. Counsel for the respondents submits the provisions of Rule 233B were not attracted in a case where the refund claim arose out of the Tribunal order and where the claim of refund relates to an amount pre -deposited pursuant to Tribunal order under Section 35F. He relies on the following case law in support: