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12. We heard the learned counsel on either side and perused the materials available on record.

13. From the above contentions, the points that arise for consideration in this case are as follows :

1. Whether the petitioner unjustly enriched because of the refund and thereby rendering itself not entitled to refund as provided under Section 11-B of the Act?

2. Whether in the facts and circumstances of the case, the payment of the excise duty made by the petitioner would amount to payment under protest thereby proviso to section 11B of the Act would get attracted to the case?

16. Point No.2: The second proviso to Section 11B(1) reads as follows:

Provided further that the limitation of six months shall not apply where any duty has been paid under protest. The Commissioner by his order dated 18.4.1995 while setting aside the original order and remitting back the matter, has directed the original authority to record a finding whether the duty has been paid under protest or not. The Assistant Commissioner by his order dated 05.09.1995 recorded a finding that neither the consignor MRL nor the petitioner have proved with sufficient records that the duty was paid under protest as contemplated under Rule 233B. In the second round of appeal before the Commissioner also, the petitioner has raised a plea that the entire amount has been paid under protest though the procedure as contemplated under Rule 233B has not been strictly followed which is evident from paragraph 3 of the Commissioner's order dated 22.11.1995. However, the Commissioner, without going into that aspect of the matter in detail with reference to materials, simply confirmed the order of the Assistant Commissioner by observing that the payment of duty on 21.3.1994 by MRL could not also be considered as payment under protest in terms of Rule 233B.

18. Though the Department has taken a stand that the duty has not been made under protest, however, in their counter filed in the writ petition, consciously, they themselves accepted that the petitioner was forced to pay the duty.

19. Now let us consider whether the above referred to statement of the petitioner could be treated or constituted as payment made under protest as required under law. In the case of India Cements Ltd. v. Collector of Central Excise, 1989 (41) ELT 358 (SC) , the Supreme Court had an occasion to consider what would amount to payment of duty under protest. A letter written by the manufacturer of the excisable goods to the effect that if the department felt that the duty was leviable on the packaging charges, the assessee had no option but to suggest that the rates be fixed by the Government of India from quarter to quarter as packaging charges was regarded by the Supreme Court as payment made under protest. In the words of the Supreme Court (at paragraph 10) :

22. If we apply the ratio of the above cases to the facts of the present case, particularly, the statements extracted supra from the exemption order, we are of the considered view that the payments were made only under protest. Borrowing the words of the Supreme Court, if these letters could not be said to be a protest, one fails to understand what else they could be?

23. An argument is sought to be raised that the point as to payment of duty under protest has not been argued before the learned single Judge. Hence, that issue cannot be now pressed into service in this appeal. We are not able to accept this plea. As stated supra, by his order dated 20.1.1995 the Commissioner originally remanded the matter to the Assistant Commissioner among other things to record a finding whether the duty has been paid under protest or not. The Assistant Commissioner by his order dated 5.9.1995 recorded a finding to the effect that MRL has discharged duty only on anticipated consumption of TPL i.e., 15% of the total quantity of SKO supplied by MRL to TPL. Hence, TPL would not be eligible for refund for the month of March 1994 during which period MRL paid duty only on 15% of the total quantity despatched by them to TPL. Only non duty paid quantity has been returned from TPL back to MRL during the month of March, 1994. The Commissioner (Appeals) by his order dated 22.11.1995 has recorded a finding to the effect that the Assistant Commissioner has complied with all the directions although he had erred factually in observing that during March 1994 duty was paid only on 15% of kerosene supplied to MRL ignoring the fact that on 21.8.1994 further duty liability on the remaining 85% was discharged by MRL by paying a lump sum of Rs.1.94 crores. Even in the counter filed in the writ petition, it has been averred by the Department that the petitioner was forced to pay the amount. It is true that before the learned single Judge, the parties were only concentrated on the point of limitation, though the point of payment of duty under protest was available in the records. Hence, there was no occasion for the learned single Judge to consider the issue. Further, it is very well settled and established proposition of law that if a plea though not specifically raised before the subordinate tribunals or the administrative and quasi-judicial bodies, is raised before the High Court and if the plea goes to the root of the dispute and is based on admitted and uncontroverted facts and does not require any further investigation into a question of fact, the High Court is not only justified in entertaining the plea but in the anxiety to do justice which is the paramount consideration of the court, it is only desirable that a litigant should not be shut out from raising such plea which goes to the root of the lis involved. The aforesaid view has been taken by the Supreme Court in a number of decisions, a few of which are A. St. Arunachalam Pillai v. Southern Roadways Ltd., AIR 1960 SC 1191; Cantonment Board, Ambala v. Pyarelal , AIR 1966 SC 108 and Rattan Lal Sharma v. Managing Committee, Dr Hari Ram (Co-Education) Higher Secondary School, AIR 1993 SC 2155 = (1993) 4 SCC 10. In a latest decision of the Supreme Court on this point it was held that a plea abandoned before a single Judge in a High Court could be raised before a Division Bench. Such plea is not barred by estoppel because the writ appeal is in continuation of the original order passed by the single Judge in writ jurisdiction., vide Bongaigaon Refinery & P.C. Ltd. v. Girish Chandra Sarmah, (2007) 7 SCC 206 = 2007 AIR SCW 5185. Therefore, we are of the considered view that the payment of duty made by the petitioner in respect of the disputed period was made only under protest and as such the second proviso to Section 11B would definitely get attracted and on that score, the order of the authorities including that of the Tribunal non-suiting the petitioner for refund in respect of March 1994 is not in accordance with law.