- (1.) IN compliance of the order dated 14 -10 -2003 passed by this Court in D.B. Central Excise Reference Application No. 16/2003 under Section 35H of the Central Excise Act, 1944 ('the Act'), the Customs, Excise & Service Tax Appellate Tribunal, New Delhi ('the Tribunal') has referred the following questions for decision of this Court alongwith the statement of case: - WHETHER in the facts and circumstances of the present case, the CEGAT was right and justified in rejecting the petitioner's refund claim as time -barred.
(2.) WHETHER in the facts and circumstances of the present case, the petitioner's letters dated 5 -10 -1995 and 5 -12 -1995 clearly amount to lodging protest as required in terms of Rule 233B of the Rules. The questions aforesaid have arisen because of a claim made by the applicant -assessee on 25 -6 -1998, seeking refund of the differential duty amounting to Rs. 14,92,578/ - paid by them in respect of the additions on account of transportation, insurance, handling and delivery charges to the assessable value of goods cleared. According to the assessee, the payment in question was under protest whereas, according to the revenue, there was no proper protest with compliance of the requirements of Rule 233B of the Central Excise Rules, 1944 ('the Rules'/the Rules of 1944') - 2. The relevant facts and background aspects of the matter are in a narrow compass and could be noticed in the following : The assessee M/s. Shree Shyam Filament Ltd. had been manufacturing synthetic filament yarn falling under Chapter 54 of the First Schedule to the Central Excise Tariff Act. The case of the assessee had been that under intense pressure of the department, they had paid, during the period 6 -12 -1995 to 22 -10 -1997, the differential duty in respect of the additions to the assessable value of goods on account of transportation, insurance, handling and delivery charges for the clearances made during the period 1 -3 -1994 to 30 -11 -1996. The case of the assessee further had been that by way of the letters dated 5 -10 -1995 and 5 -12 -1995, they had lodged protest against inclusion of such charges in the assessable value of goods when the Assessing Officer proposed to make such additions; and during the pendency of those proceedings, the amount in question was paid after raising objections. Ultimately, the objections of the assessee were sustained. Thereafter, on 25 -6 -1998, the assessee lodged the claim, per Section 11B(2) of the Act, for refund of the amount paid towards additional value included in the assessable value of goods cleared.
(3.) THE Deputy Commissioner Central Excise, under Order -in -Original No. 55 -Refund/99, dated 18 -11 -1999, rejected the claim so made by the assessee for refund of the duty as being time -barred, while holding that the letters dated 5 -10 -1995 and 5 -12 -1995, as filed by the assessee with the Department, were not the letters of protests but were merely the letters of disagreement with the Superintendent on various issues; and that the procedure specified under Rule 233B of the Rules was not followed by the assessee. The Commissioner (Appeals) also, under Order -in -Appeal No. 443 (KDT) Central Excise/JPRI/233/2001, dated 5 -7 -2001, rejected the appeal filed by the assessee on the ground that there was no indication in both the said letters that the duty was being paid under protest. In further appeal filed before the Tribunal, it was contended by the assessee that as per the second proviso to Section 11B of the Act, the limitation of six months for filing the refund claim shall not apply where any duty had been paid under protest; that under the letter dated 5 -10 -1995, they had recorded disagreement with the levy of differential duty on transportation, delivery charges; and as the Superintendent yet urged them to deposit the duty, they clearly mentioned in their letter dated 5 -12 -1995 that : 'differential excise duty in case of Transportation/Delivery charges and Insurance Charges is not leviable'; and that these 'are permissible deductions for the calculation of assessable values'. It was also submitted that the Superintendent was requested 'not to insist upon recovery on short levied excise duty amount charged in case of transportation/delivery and insurance charges'; and his continuous 'insistence and pressure for recovery of the same would be unjustified and against the principle of natural justice.';