- (1.) We have heard Sri A.P. Mathur, the learned counsel for the appellant and Sri R.C. Shukla, the learned counsel for the department.
(2.) The present appeal was admitted on the following substantial question of law: - "Whether the Hon'ble Tribunal is justified in rejecting the refund claim as time barred when the entire Central Excise duty of the refund claim was paid in consequence of an order passed by commissioner provisionally -
(3.) The appellant is engaged in the processing of grey fabrics with the aid of Hot Air Stenter. The Commissioner vide order dated 16th of April, 1999 determined the annual capacity of production and monthly duty liability on provisional basis w.e.f. 28.02.1998. The appellant did not file any appeal and deposited the duty. Subsequently, the appellant lodged a protest through their representation dated 13th June, 1999 contending that the length of galleries does not find part of the production system of the Stenter and therefore, such length of galleries could not be included while determining the production capacity. The appellant, accordingly, in its representation requested that the department should re -determine the annual capacity of production after excluding the galleries and arrive at a correct amount of duty payable. The appellant in the said representation further contended that hence onwards the duty would be paid under protest.;