Customs, Excise and Gold Tribunal - Delhi
Hindustan Cocoa Products Ltd. vs Collector Of Central Excise on 28 July, 1987
Equivalent citations: 1987(13)ECR844(TRI.-DELHI), 1987(32)ELT747(TRI-DEL)
ORDER G.P. Agarwal, Member (J)
1. Being dis-satisfied with the impugned order passed by the Collector of Central Excise (Appeals), Bombay, confirming the order-in-original passed by the Asst. Collector 'ejecting the claims of the appellants for refund of the excise duty, the appellants have filed the present appeal.
2. Factual backdrops : M/s. Cadbury India Ltd., now M/s. Hindustan Cocoa Products Ltd., are the manufacturers of products falling under T.I.1A and IB. The appellants filed their refund claims for the period ranging from June 1979 to March 1984. The details of the refund claims filed by the appellants as mentioned in the order-in-original are as follows :
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Sr. Letter No. & Date Date of Period T.I. Amount of No. Receipt refund
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(1) (2) (3) (4) (5) (6)
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1. FL:ASW Dt. 3-12-79 - June 1979 to IB 19,76,861-59 Oct. 79
2. FL:ASW Dt. 3-12-79 - June 1979 to IA 4,75,900-88 Oct.'79
3. FL:ASW Dt. 1-3-79 5-3.80 Nov. 1979 to IB 14,13,706-25 Jan.'80
-do- IA 3,05,381-24
4. FL:ASW Dt. 21-4-80 24-4-80 Feb. 80 to IB 3,30,455-28 March 1980
-do- IA 3,78,323-22
5. FL:ASW Dt. 30-10-80 30-10-80 April 1980 to IA 1,84,782-25 Sept'80
-do- IB 7,82,984-68
6. FL:ASW Dt 29-7-81 31-7-81 Oct. 1980 to Dec. 1980 IB 19,09,473-43 Jan. 1981 to No. 26,37,234-22 June 1981 TI now
7. FL:ASW Dt 29-7-81 31-7-81 Oct. 1980 to - 10,14,233-13 Dec. 1980 Jan. 1981 to - 1,22,997-53 June 1981 23,35,508-49
8. FL:ASW Dt.29-9-82 29-9-82 Oct. 1981 to IB 27,76,491-45 Dec. 1981 Oct. 1981 to IA 34,53,304-60 June 1982 Oct. 1981 to IA 2,03,278-17 June 1982
9. FL:ASW Dt.30-12-81 1-1-82 July 1981 to 46,05,551-72 Sept. 1981 July 1981 to 15,16,497-68 Sept. 1981
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The above refund claims were filed by the appellants claiming refund of duty paid on post manufacturing expenses/post manufacturing profit (selling costs and selling profits).
3. Before the above claims could be looked into the appellants filed the following revised reduced refund claims covering the above period and subseauent period upto 9-3-1984 as under :
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Sr. Letter No. & Date Period Amount of Remarks No. under which received Refund claim
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(1) (2) (3) (4) (5)
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1. JGK:TVA 7-6-69 to 18,01,998-62 The claim is filed Dt. 31-10-83 12-2-82 for refund of duty paid on average freight.
2. JGK:TVA 7-6-69 to 24,79,013-71 Refund of duty Dt. 20-3-84 recd. 31-7-83 duty paid on addl.
on 30-3-84 sales tax/turnover
tax, octroi &
transit insurance.
3. FL:ASW 13-12-82 8,47,432-35 The claim is filed
Dt. 20-9-83 recd. from refund of
on 21-9-83 duty paid on
average freight.
4. AWT:DSP 1-7-83 to 54,912-15 -do-
Dt. 23-1-84 recd. 307-83
on 24-1-84
5. JGK:TVA of 1-8-83 to 6,27,160-58 Refund of duty paid
16-4-84 recd. 9-3-84 on addl. sales tax/
on 27-4-84 turnover tax, octroi
& transit insurance.
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The refund claims mentioned above were in respect of average freight and additional sales tax/surcharge on sales tax/turnover tax, octroi and transit insurance.
4. Thereafter again under their letter No. FL:ASW of 13-12-1984, the appellants filed their 12 refund claims in respect of the above mentioned period, viz., 7-6-1979 to 9-3-1984 claiming refund of duty paid on (i) average freight, (ii) additional sales tax/surcharge on sales tax/turnover tax, (iii) octroi, and (iv) transit insurance.
5. The Assistant Collector, Central Excise Division II, Thane, vide his order-in-original dated 30-4-1985 disposed of the said refund claims as under :
(i) Regarding refund claims mentioned in para 2 above, the Assistant Collector held in para 6 of his order that the appellants have claimed the refund of duty paid on post manufacturing expenses/ post manufacturing profits (selling costs and selling profits) and since in view of the Supreme Court judgment selling costs and selling profits form part of the assessable value, the same are not deductible from the assessable value. Consequently, duty paid on the same was correctly paid and no refund was due.
(ii) Regarding refund claims mentioned in para 3 above, the Adjudicating Authority in para 7 of his order held that though the said refund claims are in respect of average freight and additional sales tax charge/surcharge on sales tax/turnover tax, octroi and transit insurance and are eligible for deductions from the assessable value being elements of post manufacturing expenses, the same were time barred being received after expiry of 6 months from the date of payment of duty as provided under Section 11B(1) of Central Excises & Salt Act, 1944. It further held that the scrutiny of letter of 7-6-1979, copy of which was attached with claims (which is in dispute as is apparent from his order) shows that the duty in respect of selling cost and selling profit was paid under 'protest' and therefore the said 'protest' was not applicable to duty paid on average freight and taxes and 'insurance. As such, the claims were hit by the time limit except part of the claims shown as Serial No. 3, 4 and 5 for the period 22-3-1983 to 25-7-1983 to 30-7-1983, 28-10-1983 to 9-3-1984 are within the time limit. Further while holding so, he further held that the claim for the period from 22-3-1983 to 30-6-1983 and 29-7-1983 to 30-7-1983 are in respect of duty paid on average freight and in computing the average freight the loading and unloading charges are also included. The deductions on account of loading and unloading charges from the assessable value is not admissible and the appellants have not shown in the work sheet, charges on account of freight and loading and unloading separately. As such, it is not possible to compute the amount of refund claim on account of transport charges for this period and as such the claims are liable to be rejected.
(iii) As regards the 12 claims received vide letter dated 13-12-1984, as mentioned in para 4 above, the Assistant Collector held in para 8 of his order that the same were time barred being received after expiry of 6 months from the date of payment of duty under Section 11B(1) of Central Excises & Salt Act, 1944. He further concluded in para 16 that since the duty was not paid under 'protest' following the procedure prescribed under Rule 233B of the Central Excise Rules, 1944, the same are liable to be rejected being time barred and therefore the other issues such as nature, scope and quantum of freight, taxes etc., need no consideration. He further held that the issue regarding treating the duty recovered from the buyers as assessable value and recovery of duty element from the same and refund in respect of duty debited in R.G. 23 Pt. II are therefore not taken into consideration in the light of the aforesaid conclusion
6. Against the said order of the Asst. Collector, the appellants filed their appeal with the Collector of Central Excise (Appeals), Bombay, but without success.
7. We have heard Shri J.R. Gagrat, learned counsel for the appellants duly assisted by S/Shri C.M. Mehta and R.S. Pandey, Advocates and Shri V.M. Doiphode, learned SDR for the respondent.
8. Shri J.R. Gagrat, learned counsel for the appellants vehemently contended that where the duty is paid under mistake of law or duty is collected without the authority of law, the claim of refund is governed by the General Law of Limitation and limitation starts from the date when the mistake was discovered, and therefore, the authorities below erred in invoking the period of limitation of 6 months provided under Section 11B of the Central Excises & Salt Act, 1944. In support of his contention Shri Gagrat cited the following cases :
(1) Shalimar Textile Mfg. Pvt. Ltd. v. Union of India, 1986 (25) ELT 625 (Bom.);
(2) I.T.C. Ltd. v. M.K. Chipkar, 1985 (19) ELT 373 (Bom.);
(3) Straw Products Ltd. v. Factory Officer, Central Excise, 1983 ECR 222D (Orissa); and
(4) I.T.C. Ltd. v. Superintendent of Excise, 1983 ELT 281' (Delhi).
Shri Gagrat further submitted that in the instant case Central Excise duty was paid under mistake of law (which according to him, amounts to duty recovered without authority of law and jurisdiction) on the four elements (i) average freight, (ii) octroi, (iii) additional sales tax and (iv) transit insurance as held in the following cases :
(1) Oriental General Industries Ltd. v. Collector of Central Excise, 1985 (21) ELT 326;
(2) Shalimar Textile Mfg. Pvt. Ltd. v. Union of India, 1985 (19) ELT 30 (Bom.);
(3) Macneill & Magor Ltd., Calcutta v. Collector of Central Excise, 1986 (8) ETR 164 (Delhi); and (4) Devidayal Electronics & Wires Ltd. V. Union of India, 1986 (25) ELT 638 (Bom.) Shri Gagrat further submitted that apart from the provisions regarding limitation, this Tribunal has power and jurisdiction to grant all reliefs to meet the ends of justice under its incidental and ancillary powers and for this proposition, he relied upon the following cases :
(1) I.T.O. Cannanore v. M.K. Mohamed Kunhi, (1969) (71) I.T.R. 815;
(2) K.V.N. Prasad & utners v. The Central Board of Excise and Customs, 1978 ELT 0 697), and
(3) Union of India v. A.V. Narasimhalu, 1983 ELT 1534 (S.C.).
He further submitted that the plea of time barred in all morality and justice should not ordinarily be taken up by the Government or a public authority to defeat a "just claim" of the citizen.
9. In reply, Shri V.M. Doiphode, learned SDR submitted that the Tribunal is bound by the time limit prescribed under Section 11B of the Central Excises & Salt Act,
10. After giving our due consideration to the arguments so advanced by the parties, we are of the view that the case laws cited by the learned counsel for the appellants have no applicability to the instant case. For, the decision holding that the General Law of Limitation for refund of tax illegally collected or duty paid under mistake of law were cases where the relief was granted by the Hob'ble Supreme Court or the Hon'ble High Court while exercising powers under their writ jurisdiction or dealing with the appeals arising out of Civil suits for the recovery of amount without reference to its statutory powers contained in the Customs Act or Excise Act etc. regarding limitation. On the other hand, the issue involved in the instant case is fully covered by the decision of this Tribunal rendered in the case of Miles India v. Appellate Collector of Customs, Bombay, 1983 ELT 1026, which was confirmed by the Hon'ble Supreme Court as reported in 1985 ECR 289. In the case of Miles India v. Appellate Collector of Customs, supra, it was held by this Tribunal that the claim for refund of duty paid under the mistake of law is governed by the time limit prescribed under Section 27 of the Customs Act, 1962 and General Law of Limitation is inapplicable to such a claim. Relying upon the proposition of law laid down by the Hon'ble Supreme Court in the case of M/s. Burmah Construction Co. v. State of Orissa, AIR 1962 (S.C.) 1320, and Commissioner of Sales Tax, U.P. v. Parson Tools and Plants, Kanpur, AIR 1975 (S.C.) 1039, this Tribunal ultimately held that it is not open particularly to a Tribunal functioning within the confines of the same Act to induct provision of General Law of Limitation into the statute and relax the time limit provided therein. Against this decision of the Tribunal, an appeal was filed by Miles India which was dismissed on 6-4-1984 as reported in 1985 ECR 289 (S.C.), supra, wherein their Lordships held as follows:
"After the matter was heard for some time and it was indicated that the Customs Authorities, acting under the Act, were justified in disallowing the claim for refund as they were bound by the period of limitation provided therefor under S. 27(1) of the Customs Act, 1962, learned counsel for the Appellant sought leave to withdraw the appeal. We accord their leave to withdraw the appeal but make it clear that the order of the Customs, Excise 3c Gold (Control) Appellate Tribunal suffers from no infirmity. If really the payment of the duty was under a mistake of law, the appellant may seek recourse to such alternative remedy as it may be advised."
In the case of Madras Rubber Factory Ltd., Vs Union of India, AIR 1976 SC 638, the Hon'ble Supreme again refused to interfere with the orders of the Customs authorities rejecting the application for refund which was filed beyond six months. Moreover, this Tribunal in its series of judgments have taken a consistent view that to a claim for refund of duty filed before the authorities under the Central Excise authorities, General Law of Limitation is not applicable. In Collector of Central Central Excise Vs. M/s Sarangpur Cotton Mfg Co., 1987 (10) ECR 78 following the decision rendered in the case of Miles India Ltd., supra, it was held that for refund of duty time limit under the Excise Law will prevail and the General Law of Limitation will not be attracted. Same view was taken in Collector of Central Excise Vs. Ram Nath Ram Kumar, 1987 (28) ELT 584; Tl Diamond Chain Ltd.. Vs. Collector 1987 (28) ELT 486; Kerala Electric LampWorks Ltd.. Vs. Collector of Central Excise, 1987 (29) ELT 264. The said view of the Tribunal finds tacit approval of the Hon'ble Calcutta High Court and Delhi High Court. In Incheck Tyres Ltd.. Vs. Assistant Collector, decided on 9.1.1986 and reported in 1987 (27) ELT 614, a Division Bench of the Calcutta High Court held that undoubtedly the bar of limitation of 6 months laid down by Section 27 of the Customs Act would not apply in case the High Court in its discretion makes an order for refund under Article 226 of the Constitution. But in exercising its power under Article 226 of the Constitution the Court is always guided by well settled principles of law. When a party has chosen to avail of ordinary remedy provided under the Customs Act for obtaining refund of duty paid by them but the said claim is rejected on the ground of limitation, the Court by invoking its power under Article 226 of the Constitution may choose not to lift the said bar of limitation and order refund of the duty and ultimately refused the prayer of the petitioner of that case for issue of mandate upon the respondents to refund duty in question. In Autometers Ltd. Vs. Union of India, 1987 (29) ELT 3, Hon'ble Delhi High Court unmistakingly held that so far as the authorities under the Customs Act are concerned they are to act strictly in accordance with law which constitutes it and therefore no claim for refund can be made under Section 27(1) of the Customs Act unless the claim is made within 6 months.
Thus the law stands well settled that authorities constituted under the Central Excises, 3c Salt Act are bound by the period of limitation provided in the Act itself, and the contention of the learned counsel for the appellants that the Tribunal has powers to relax the time limit cannot be accepted. In the case of Indo-3apan Industries Vs. Collector, 1987 (27) ELT 502, this Tribunal while dealing with the same question concluded that it has no powers to relax time limit provided under Section 27 of the Customs Act. It deserves to be mentioned here that even the High Court may not choose to lift the bar of limitation arid order refund of duty in suitable cases as held by a Division Bench of the Calcutta High Court in the case of Incheck Tyres Ltd. v. Collector of Central Excise, supra.
11. Before we part with this contention it deserves to be mentioned here in all fairness to the appellants that in the case of Beverages and Food Products Vs. Collector, 1986 (26) ELT 1001, the East Regional Bench of this Tribunal has held that where duty is paid under mistake of law, the provisions of General Law of Limitation can be invoked and the application for refund can be filed within three years from the date of discovery of the mistake as in such cases Rule 11 of the Central Excise Rules, would be applicable. 'But a Division Bench of this Tribunal differed with this view of the East Regional Bench in the case of Kerala Electric Lamp Works Ltd. Vs. Collector of Central Excise, Cochin, 1987 (29) ELT 264, because it was found that the judgment rendered by the Hon'ble Supreme Court in the case of Viiles India, supra and Sakuru Vs. Tanaji, 1985 (22) ELT 327 (S.C) was not noticed by the East Regional Bench while deciding the case of Beverages and Food Products, supra.
12. The other contention of the learned counsel for the appellants that the plea of time bar in all morality and justice should not be taken up by the Government or public authority to defeat a 'just claim' of the citizens and it is high time that the Government and public authority should adopt the practice of not relying upon technical pleas for the purpose of defeating the legitimate claims of citizens and do what is fair and just to the citizen has also no substance. It is true that in the case of Madras Port Trust Vs. Hymanshu International by its Proprietor V. Venkatadri, AIR 1979 SC 1144, while dealing with the question as to whether the claim of the trader for refund under Section 110 of the Madras Port Trust Act, 1905 was time barred, their Lordships observed as follows i "The plea of limitation based on this section is one which the court always looks upon with disfavour and it is unfortunate that a public authority like the Port Trust should, in all morality and justice, take up such a plea to defeat a just claim of the citizen."
The Court then said:
"It is high time that governments and public authorities adopt the practice of not relying upon technical pleas for the purpose of defeating legitimate claims of citizens and do what is fair and just to the citizens."
But it is equally true that in the very recent decision rendered in the case of Mewa Ram Vs. State of Haryana, AIR 1987 (SC) 45, their Lordships of the Supreme Court have not approved the above view and held that "mere expression of a hope does not lay down any universal rule of application that the Government is prevented from pleading limitation as a bar."
13. Shri Gagrat, learned counsel for the appellants further contended that all payments of excise duty on and after 7-6-1979, for which refund claims in question were filed were effected under 'protest'. Therefore, the time limit of 6 months prescribed under Section 11B (1) of the Central Excises and Salt Act, would not apply. In reply, Shri Doiphode, learned SDR for the respondent submitted that both the authorities below have found that the payments were not made under 'protest'.
14. Shri Gagrat, learned counsel for the appellants while elaborating his arguments contended that all payments of excise duty on and after 7-6-1979 were effected under 'protest'. He submitted that -
(i) for the period from 7-6-1979 to 1-6-1981 the relevant provision only provided for payment "under protest'. In other words, no procedure was prescribed which was to be followed in cases where duty was paid 'under protest'.
(ii) for the period from 1-6-81 to 30-7-83 (in the case of average freight) and from 1-6-81 to 9-3-84 (in the case of octroi, additional sales tax and transit insurance), the provision of Rule 233(b) of the Central Excise Rules, 1944 was in force which prescribes 'Procedure to be followed in cases where duty is paid under protest.
To show that the duty was paid under protest Shri Gagrat, learned counsel for the appellants submitted that the appellants addressed their letter dated 7-6-1979 to the Superintendent of Central Excise concerned intimating that they would be paying duty under protest and in their Price List Pt. I submitted for approval they mentioned about this letter in the remarks column. He further submitted that the protest was also recorded on all the statutory documents, i.e., G.P.I, Monthly Return R.T. 12, Price List covering letters forwarding the Price List. From the impugned Order, it appears that the same arguments were advanced by the appellants before the Assistant Collector and the Collector (Appeals). The Assistant Collector in para 15 of his order concluded that the appellants have failed to produce evidence to show that the said letter dated 7-6-1979 was ever delivered to the proper officer. No copy of this letter is available on the record of his office or that the Range Office, nor has the appellant produced a copy of the same or its acknowledgement till this day. On these findings he concluded that duty paid during the period covered by these claims amounts to have been paid without protest. The Collector (Appeals) also confirmed these findings of the Assistant Collector and held that since it is an admitted fact that the appellants did not produce the letter dated 7-6-1979 either before the Assistant Collector or before him, as such their clairr' of 'protest' cannot be entertained in the absence of any evidence on record.
15. We have considered arguments so advanced by the parties. For convenience we may consider the arguments of the appellants in the order in which they were argued :
Regarding duty paid for the period after 7th June 1979 to 1st June 1981.
It is true that at the relevant time no procedure was prescribed .either under the Act or the Rules made thereunder which was to be followed by the assessee when the duty is paid 'under protest'. But the fact remains that it was the positive case of the appellants that they intimated to the Superintendent, Central Excise concerned vide their letter 7-6-1979 that they would be paying the duty under protest on the selling costs and selling profits. Under these, circumstances, it was for the appellants to prove that the alleged letter dated 7-6-1979 was in fact sent or delivered to the Superintendent, Central Excise as alleged. As stated above, the Assistant Collector has recorded a specific finding that the appellants have failed to produce any evidence that the letter dated 7-6-1979 was delivered and no copy of this alleged letter was available on the records of his office or that of Range Office nor the appellants have produced the copy of the same or its acknowledgement. It is an admitted fact that the appellants did not produce any acknowledgement to show that the said letter was received by the Department as alleged. The appellants have also not produced any evidence to show that the said letter dated 7-6-1979 was ever sent to the Department as alleged. The Appellate Authority below has also confirmed the same findings. Thus, in the presence of these findings of the Adjudicating Authority, who is a very senior official of the Customs Department must be held to have been made only after due enquiry. In this view of the matter, we are supported by the decision rendered by this Tribunal in the case of Jai Hind Oil Mills v. Collector, 1987 (28) ELT 507, wherein while dealing with the question as to whether the refund application was received by the Assistant Collector as alleged by the appellants of that case, this Tribunal after holding that the Departmental cases are not comparable to a Civil Suit between two rival parties where either party should lead evidence to rebut the evidence led by the other party or presumption arising in its favour observed as follows :
"It is a case where the Assistant Collector of Customs, who is a very senior official of the Customs Department, was acting quasi-judicially. His categorical statement recorded in his quasi-judicial order that the refund application was not received must be held to have been made only after due enquiry from the correspondence in question. We would not expect the Assistant Collector acting in a quasi-judicial way to record in detail the material he had examined before he came to conclusion that the refund application vas not received in the Customs House. In this context, we perused Illustration (c) to Section 114, cited by the Revenue. This illustration allows a Court to presume that judicial and official acts have been regularly performed. No cause has been shown for us to doubt the finding of the Assistant Collector. After all, in a Customs House, hundreds of refund applications are received and these are dealt with in the ordinary course. Not a single circumstance has been cited before us to show that the appellant's refund claim reached the Customs House. For these reasons, we hold that there is no proof at all that the refund claim in question reached the Customs House."
Further in the remark column No. 13 of the Price List submitted in Pt.I for the approval of the price the appellants have not said that they were paying the duty 'under protest'. Thus, the mere mention of alleged letter dated 7-6-1979 does not amount and cannot amount to be a 'protest' in the absence of any evidence that the alleged letter dated 7-6-1979 was ever sent by the appellants or received by the Department. For the same reasons mere mentioning of the same on Gate Passes etc. also does not help the appellants.
(ii) Regarding refund of duty paid for the period 1-6-1981 to 30-7-19S3 and 1-6-1981 to 9-3-1984.
It is admitted by the appellants that Rule 2333 of the Central Excise Rules, 1944, came into force with effect from 1-6-81. The said Rule provides the procedure to be followed in cases where duty is paid under protest. Under the procedure so laid down amongst other things it is provided that where an assesse desires to pay duty under protest he shall deliver to the Proper Officer a letter to this effect and give grounds for payment of the duty under protest. It is admitted by the appellants that they never delivered a letter to the Proper Officer expressing their desire to pay the duty under protest and the grounds for payment of duty under protest in terms of Rule 2339 after it came into force on 1-6-1981. What Shri J.R. Gagrat, learned counsel for the appellants contended is that infraction of Rule 233B would only be procedural in nature and would not take away the rights of the appellants if there had been some formal protest or other. In our considered opinion this contention has no force. Firstly because as held earlier there is no evidence on record to show that the alleged letter dated 7-6-1979 was sent to the Superintendent, Central Excise concerned, and secondly, because admittedly the appellants have not followed the procedure laid down under Rule 233B as and from 1-6-1981 when the said Rule came into force. The appellants have not complied with Rule 2338 by delivering to the Proper Officer the letter of protest giving ground for payment of duty under protest etc. It is not disputed before us that even the alleged protest contained in the alleged letter dated 7-6-1979 was not in terms of Rule 2333 of the Central Excise Rules. Under these circumstances, the plea of the appellants that infraction of Rule 2333 would only be procedural in nature and would not take away the right of the appellants if there had been some formal protest or other is not legally tenable because such a construction would render the very Rule 233B otiose when the legislature has specifically incorporated a particular method to be adopted by the appellants to protest against payment of duty. If the same is not conformed to, it would be construed as only payment without any protest. In this view of the matter we are supported by the decision of this Tribunal rendered in the case of T.I. Diamond Chain Ltd. Vs. Collector, 1987 (28) ELT 486. Thus, it stands proved that the duty was not paid under protest' what to talk of the payment under valid protest as required under Rule 233B, ibid. The case of Andhra Cement Co. Ltd., Vs. Collector of Central Excise, Guntur, 1986 (7) ETR 576, cited by the learned counsel for the appellants goes against them. In that case it was found as a fact that the letter of protest was delivered to the authorities concerned but it was not treated as a valid protest by the Assistant Collector for the reason that after delivering the letter of protest the assessee failed to make an endorsement "duty paid under protest" on Form RT-12 as required under Sub-rule 4 of Rule 2338, ibid. Under these circumstances it was held by this Tribunal that the provisions of Rule 2? 33 in regard to endorsement on Gate Passes and R.T. Returns are directly and not mandatory in nature because requirement of endorsement on Gate Passes and R.T. 12 Returns are follow-up action of a valid letter of putest. In the instant case as held above, when it is admitted to the appellants that they never delivered to the Proper Officer their any letter of protest giving grounds for payment of duty under protest in terms of Sub-rule (1) of Rule 233B, the question of taking up of the follow-up action as required under sub-rules of 2333 does not arise. From the ratio of the said decision rendered by this Tribunal in the case of Andhra Cement Co. Ltd. Vs. Collector of Central Excise, Guntur- supra, it is clear that there must be first a valid letter of protest for claiming the benefit. But in the instant case the position is otherwise. The decision rendered by this Tribunal in the case of Sirpur Paper Mills Vs. Collector of Central Excise, 1984 (15) ELT 461 also does not help the appellants. In that case the protest was not treated valid under the erstwhile Rule 11 of the Central Excise Rules, 1944 by the Assistant Collector on the ground that no grounds for paying the duty under protest were stated. But in the facts and circumstances of that case this Tribunal concluded that the Bench was satisfied that the protest was a valid protest.
In the result, we agree with the findings recorded by both the authorities below and hold that the refund claims for the said period was also time barred.
16. It deserves to be mentioned here that a part of the refund claim shown at S. Nos. 3, 4 and 5 as detailed out in para 3 above was held to be received in time by the authorities below. The Assistant Collector in the impugned order rejected the same on the ground that they related to duty paid on average freight and in computing the average freight the loading and unloading charges were also included which was not permissible and since the appellants failed to show the same in the work-sheet, charges on account of freight and loading and unloading separately, it was not possible to compute the amount of refund claim on account of transport charges for the period for which the claims were received in time. The appellate authority below has confirmed the same findings. We do not consider that this was a correct approach. Justice demands that a claim, which is otherwise admissible, should not be denied merely because calculations have to be made afresh. The assessee can be asked to furnish fresh calculations of the admissible portion, duly certified by a Chartered Accountant/Cost Accountant, and the Assistant Collector can consider them after such verification as he may deem fit.
17. Accordingly, we order that the appellants should file fresh calculations of the climbable amount on account of-
1) average freight, 2) unloading charges, 3) transit insurance, 4) additional sales tax/turnover tax and 5) octroi.
No deduction is admissible on account of loading charges as these are incurred before removal of the goods from the factory gate. The claim should be limited to the period which fell within the statutory time limit. To the extent the aforesaid five admissible deductions were claimed by the appellants in the original omnibus refund claims based on "post-manufacturing expenses", the limitation ought to be reckoned with reference to the respective date of receipt of the original refund claim by the Assistant Collector and not the later date of receipt of the revised reduced refund claim. The Assistant Collector should, after due verification, grant the consequential refund on account of the five admissible deductions aforesaid for the periods falling within the statutory time limit so determined.
18. The appeal is allowed to the above extent only and is otherwise rejected.