SHREE SHYAM FILAMENTS Vs. CCE

JUDGEMENT

(1.) THE issue involved in this appeal, filed by M/s. Shree Shyam Filaments, is whether the refund claim filed by them is time barred under Section 11B of the Central Excise Act.

(2.) SHRI K.K. Anand, learned Advocate, submitted that the Appellant manufactured Synthetic filament yarn; that under intense pressure of the Department they paid the differential duty during the period 6.12.95 to 22.10.1997 in respect of additions to the assessable value made on account of transportation, insurance, handling and delivery charges for the clearances made during the period from 1.3.1994 to 30.11.1996; that they filed a refund claim on 25.6.1998 which was rejected by the Deputy Commissioner, under Adjudication Order No. 55 -Refd/99 dated 18.11.1999 being time barred holding that letters dated 5.10.95 and 5.12.95 were not letters of protest as these were merely letters of disapproval with the Superintendent on various issues and that the procedure specified under Rule 233B of the Central Excise Rules was not followed by them; that the Commissioner (Appeals), under the impugned Order dated 5.7.2001, rejected their appeal holding that there was no indication in the said letters that the duty was paid under protest.

(3.) THE learned Advocate, further, submitted that the second proviso to Section 11B of the Act provides that the limitation shall not apply where any duty has been paid under protest; that under their letter dated 5.10.1995, the Appellants recorded their disagreement with the levy of differential duty on transportation/delivery charges; that as the Superintendent urged them to deposit the duty, they in their letter dated 5.12.95 clearly mentioned as under: Differential Excise duty in case of Transportation/Delivery Charges and Insurance Charges is not leviable. These are indeed permissible deductions for the calculation of assessable valueswould request you not to insist upon recovery on short levied excise duty amount charged in case of transportation/delivery and insurance charges. Your continuous insistence and pressure for recovery of the same would be unjustified and against the principle of natural justice.