Decided on October 04,1991

Bombay Dyeing And Mfg. Co. Ltd. Appellant


P.K. Desai, Member (J) - (1.) THIS appeal is directed against the order in appeal No. ADN -831/90 dated 13.9.1990 confirming the order in original No. G/II/12/90 dated 31.1.1990, rejecting the appellant's claim for refund of Rs. 31,890.60.
(2.) THE appellants filed refund claim for the said amount which was received in the office of Asstt. Collector on 16.3.1989. The claim was based on the plea that by virtue of order in appeal dt. 11.2.1988 the matter was read judicated upon by the Addl. Collector on 1.2.1989, dropping the demand and the amount that was paid pursuant to the initial order in original had become liable to be refunded. As the amount of duty for which the refund was claimed, was paid on 24.9.1986, it was felt that the demand was barred by the period of limitation provided under Section 11B of CESA and that the same was not paid under protest in due compliance with the provisions of Rule 233B of the Central Excise Rules and as such, not payable and therefore a show cause notice dated 14.12.1989 was issued on the appellants who came forward with the plea that the refund arose out of the order and as such the same ought to have been suo motu sanctioned without any application and that in any case, the period of limitation prescribed under Section 11B did not apply. The AC however did not consider the said contention and rejected the claim as time barred, In the appeal before the Collector (Appeals), the same contention was re -agitated but in his opinion, the claim for refund arose as the result of order in original passed by the Addl. Collector and as such Clause 3 was not attracted and that the protest lodged was not in confirmity with the provisions of Rule 233B of the Rules, He therefore rejected the appeal.
(3.) SHRI Willingdon Christian, the Id. Advocate for the appellants submitted that the duty amount was paid on 24.9.1986 pursuant to the order of the AC dt. 21.8.1986 and that the said amount was paid under protest and referred to the challan in that regard where the specific mention was made about payment under protest. He submitted that the said order of the AC was however taken up in appeal and the Collector (Appeals) vide his order dt. 11.2.1988 set aside the said order holding that the Addl. Collector was riot authorised to adjudicate upon as vide Section 8 of the Amending Act, it was the Collector who could adjudicate upon and directed the papers to be placed before the appropriate authority. The matter was thereafter adjudicated upon by the Addl. Collector who vide his order dt. 1.2.1989 dropped the demand. In his submission, the refund claim had arisen out of the said adjudication proceedings and as such Sub -section 3 stood attracted and in any case the duty having been paid under protest vide proviso, to Sub -section 1, the period of six months would not stand attracted. He further pleaded that Rule 233 had no application here and even otherwise a substantial compliance thereof had to be taken as made. He submitted that point very similar to the one here was decided by the South Regional Bench in the case of Mahavir Metal Industries v. Collector of Central Excise reported in 1987 (31) ELT 739 : 1984 ECR 1409 (Cegat) where the department was directed to pay the refund. Smt. Lipika Majumdar Roy Choudhury, the ld. SDR supported the order and submitted that Sub -section 3 of Section 11B would not stand attracted as the said section contemplated the refund arising out of the order passed in appeal or revision whereas here the refund had become payable under the order in original and for that the only saving clause was payment under protest but by non -compliance of Rule 233B, the saving clause was not applicable and that the appellant ought to have preferred a claim for refund within the period of six months stipulated under Section 11B.;

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