NEPA LTD. Vs. COMMISSIONER OF CENTRAL EXCISE

JUDGEMENT

(1.) M/s. NEPA Ltd. has filed the present appeal against the Order -in -Appeal No. 295/2001, dated 25 -4 -2000 in which the Commissioner (Appeals) has rejected their claim for refund of duty.

(2.) Shri M. Pushkarna, ld. Advocate submitted that the appellants manufacture newsprint paper as well as wrapping paper; that wrapping paper is consumed captively to wrap the news print and duty of excise was paid according to the formula set out by the Department under letter dated 7 -6 -57; that they were calculating the quantity of wrapping paper depending upon the size of the rolls which were wrapped; that from 1980 with the amendment of advancement of technology the quality of wrapping paper was improved by adding chemical pulp to wooden pulp; that on account of improved quality actual quantity of wrapping paper required for newsprint rolls become much less than the wrapping paper used earlier; that as the formula was not changed, they continued to realise the same amount on the basis of same rate as worked out as per the formula; that subsequently the Assistant Commissioner confirmed the demand of duty of Rs. 4,52,145/ - on the ground that the extra money realised as per the formula was extra consideration on which duty was liable to be paid; that the appellants deposited the amount under protest on 8 -4 -90 and 11 -5 -90; that subsequently their appeal was allowed by Commissioner (Appeals) vide Order -in -Appeal dated 8 -2 -93; that pursuant to the said Order -in -Appeal they filed refund claim on 1 -3 -93 which has been rejected by the Assistant Commissioner on the ground that the appellants had not followed the procedure prescribed under Rule 233B of the Central Excise Rules, 1944 and the claim, being beyond six months from the date of payment of duty, is hit by time -limit specified in Section 11B of the Central Excise Act; that the Commissioner (Appeals) has also rejected their claim on the same reasoning. The ld. Advocate, further, submitted that payment of duty was made by them pursuant to the adjudication order of the Assistant Collector under protest which is evident from their letter dated 24 -5 -90 which clearly shows payment of duty under protest; that the words "under protest" were mentioned on both the TR 6 challans under which the entire amount was deposited; that it has been held by the Supreme Court in the case of India Piston Ltd. v. CCE - 1990 (46) E.L.T. 3 (S.C.) that Rule 233B is of no relevance where it has not been shown as to how one has failed to observe the Rule. This rule also does not prescribe any particular form of protest and it is not possible to say on the basis of Rule that the duty was paid without protest when protest was lodged by filing the price list as per Department's direction.

(3.) Shri H.C Verma, ld. DR reiterated the findings as contained in the adjudication order as well as in the impugned Order.