MECSHOT BLASTING EQUIPMENTS Vs. CCE, JAIPUR

JUDGEMENT

(1.) This appeal is against the order of the Commissioner (Appeals) upholding the order of the adjudicating authority rejecting the assessees application for refund on the ground of limitation. The refund application field on 19.5.99 was in respect of the duty paid by the assessee for the period 21.8.93 to 27.12.93. All the payments of duty during the said period were, according to the appellants, made under protest. The appellants, however, did not file any letter of protest with the department as required under the provisions of Rule 233B of the Central Excise Rule in relation to the payment of duty for the aforesaid period. In relation to payment of duty for the period, August to December 1992, they had submitted a letter to the Supdt. of Central Excise on 24.12.92, stating, inter alia, that the assessable value of the goods cleared during the said period had been computed "as per instructions of the Central Excise officers". As regards the payments of duty made during the period August to December, 1993, the appellant had made endorsements on the gate passes to the effect that the payments were made under protest. In reply to the show -cause notice issued by the department proposing to reject the above refund claim, the appellants had relied on the aforesaid letter dated 24.12.92 as well as the gate passes covering the period August to December 1993 to substantiate the point that the payments for the material period were made under protest for purposes of Rule 233B of the Central Excise Rules. The Deputy Commissioner, who adjudicated the dispute, however did not accept the defence of the party and he rejected the refund claim as time -barred. The appeal filed by the aggrieved party against the order of the Deputy Commissioner was rejected by the Commissioner (Appeals). Hence the present appeal.

(2.) Ld. Chartered Accountant appearing for the appellants submits that, though in the appeal filed against the order of adjudication, the appellants had raised a specific plea on the basis of the gate passes that all the payments of duty for the relevant period had been made under protest, ld. Commissioner (Appeals) did not consider the plea at all. He further submits that even the case law cited by the appellants in support of the plea that, even in the absence of a letter of protest under rule 233B, any payment of duty under gate pass bearing the endorsement and "under protest" should be considered as a payment under protest for purposes of Section 11B of the Central Excise Act was not considered by the lower appellate authority. Ld. Consultant has also placed on record copies of orders of the Tribunal holding that endorsement of protest on gate passes amounted to substantial compliance of the provisions of Rule 233B of the Central Excise Rules for purposes of refund of duty under Section 11B of the Act.

(3.) Ld. JDR, Sh. S. Kumar has reiterated the findings of the Commissioner (Appeals).