ADVANI OERLIKON LTD Vs. COLLECTOR OF CENTRAL EXCISE
LAWS(CE)-1991-7-38
CUSTOMS EXCISE AND GOLD(CONTROL) APPELLATE TRIBUNAL
Decided on July 17,1991

ADVANI OERLIKON LTD. Appellant
VERSUS
COLLECTOR OF CENTRAL EXCISE Respondents

JUDGEMENT

S. Kalyanam, Member (J) - (1.) THIS appeal is directed against the order of the Collector of Central Excise (Appeals), Madras dated 4 -10 -1989 rejecting the appellant's claim for refund on the ground that duty was not paid under protest in terms of Rule 233B of the Central Excise Rules, 1944.
(2.) SHRI Koshy Chandy, the learned Consultant for the appellant, submitted that a refund claim was filed on 1 -1 -1987 claiming refund that the appellant had paid excess duty and made the payment under protest. The plea was rejected on the ground that the protest was not in conformity with Rule 233B of the Central Excise Rules and that the protest endorsement must be made on RT 12 returns and Gate Passes of appellant. The learned Consultant submitted that the appellant is not pressing his claim for refund in respect instances where there is no protest endorsement in RT 12 returns and Gate Passes. He submitted that a sum of Rs. 84,148.14 would be due to the appellant by way of refund, if relief is granted on the basis of the protest endorsement in the Gate Passes even though such endorsements are not simultaneously made in the RT 12 returns. In this context he placed reliance on the ratio of the ruling of this Bench in the case of Andhra Cement Co. Ltd. v. Collector of Central Excise, Guntur, reported in 1986 (26) E.L.T. 553 (Tribunal), and further submitted that this decision has been followed in subsequent cases also.
(3.) SHRI Sundararaju, the learned SDR, submitted that a strict construction of Rule 233B would enjoin a party to make protest endorsement in RT 12' returns and the Gate Passes. Nevertheless in the light of the ruling of the Bench relied upon by the learned Consultant the matter may be remitted for re -consideration after due verification of the factual details with reference to records. We have considered the submission made before us. The refund claim is restricted to the instances where protest endorsements are found in the Gate Passes. Since we are not in a position to make a factual verification of the same, we set aside the impugned order to this limited extent in the light of the ratio of the ruling of this Bench cited supra and remit the matter for consideration of the appellant's refund claim with reference to the protest endorsements in the various Gate Passes and in the light of the ruling of this Bench. Ordered accordingly.;


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