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Showing contexts for: payment under protest in Andhra Pradesh Paper Mills Ltd. vs Cce on 23 April, 2002Matching Fragments
4. Ld. SDR reiterated the Departmental view as per the order given by the Commissioner (Appeals) which is extracted (supra).
5. On a careful consideration of the submissions and perusal of the record, it is seen from the show cause notice dated 8.10.1993 that the Department has not challenged the letter of protest filed by the appellant. The charge made out in paras 2 to 4 of the show cause notice is reproduced:-
On the perusal of the refund claim and the correspondence furnished so far, it is observed that the assessee has indicated that from the year 1987 onwards he had paid the Central Excise duty under protest as contemplated under Rule 233B of the CE Rules, 1944. But as per the letter No. V/pg/84-85/30 dated 9.7.85 of the assessee, purported to be an indication of payment of duty under protest, it is observed that they have protest against the Department's order in holding that the price of sub-standard (Second Grade) kraft paper is to be on par with the prices of goods quality kraft paper. This has got a bearing on order-in-original of Collector of Central Excise, Guntur vide adjudication Order No. 9/84 dated 31.10.84 dealt in C. No. V/17/15/10/82 Adj. 3. Thus it appears that the issue of payment of duty on sub-standard kraft paper is not the issue of making the assessee to pay duty under protest and as such it is no relevant and connected with the present refund claim.
(vii) The duty of substandard paper was paid under protest and the reason for payment of duty under protest was on the question of value of substandard paper the compared to the value of kraft paper and this issue is still pending in CEGAT where they have gone in appeal on the Order-in-Original of the Commissioner of Central Excise, Guntur; the assessment is to be kept alive when the duty is paid under protest till such time the issue is settled (Cited case law in Indian Tool Manufacturers v. Collector CEGAT;
5. In the show cause notice dated 8.10.93, it was proposed to reject the refund claim of Rs. 36,90,335.01. The appellants in their reply dated 10.11.93 have very categorically stated that it was due to inadvertence while filing a classification list, they erroneously did not claim the benefit of the Notification No. 217/86 dated 2.4.86, in respect of the sub-standard kraft paper utilised within the factory in the manufacture of their reel core which in turn is an input in the manufacture of other varieties of paper and paper board. They also submitted that they have filed the classification list with the Assistant Commissioner of Central Excise, Rajahmundry on 12.2.92, claiming the benefit of exemption under the Notification No. 217/86 dated 2.4.86 in respect of said sub-standard kraft paper after realising their mistake and the Assistant Commissioner approved the said classification list w.e.f. 12.2.92 allowing them the benefit under Notification No. 217/86. They have also pleaded before the Assistant Commissioner that they should not suffer due to inadvertence or mistake committed in not claiming the exemption at proper time and they should review their assessment and the excess amount of duty paid should be refunded to them. They had also pleaded before the Assistant Commissioner that the time limit of 6 months as provided in the Act would be inapplicable in the instant case, as the recovery of excise duty was clearly in contravention of the notification and also without jurisdiction and they also quoted certain case laws. They had also submitted before the lower adjudicating authority that benefit of exemption under Notification No. 217/86 cannot be denied to them even if not claimed in the classification list, as Section 11B confers an independent right and a substantial right on the assessee to claim refund, if it is otherwise permissible in law and the assessee cannot be stopped from claiming the refund merely on the ground that they did not claim the benefit of Notification in the classification list and that the excess duty has been collected by them in violation of fundamental right of the assessee to carry on trade which is guaranteed to them under Article 19(1)(g) of the Constitution. They also submitted before the Assistant Commissioner that the duty on sub-standard paper was paid under protest and the reason for payment of duty under protest was on the question of value of sub-standard paper as compared to the value of kraft paper and this issue is still pending in CEGAT, where they have gone in appeal on the Order-in-Original of the Commissioner of Central Excise Guntur; the assessment is to be kept alive when the duty is paid under protest till such time the issue is settled, the duty on sub-standard paper should be treated as paid under protest for the purpose of claiming exemption from payment of duty. They also submitted that since the payment of duty, though in respect of value of the kraft paper, the assessee has right to claim any refund of duty outside the provisions of Section 11B of the Central Excises and Salt Act, 1944, and the question of limitation of time under the said Section is not attracted and the payment of duty under protest on the sub standard kraft paper has bearing on the value of paper and also the amount of duty involved and thereby the limitation under Section 11B is inapplicable. They had also submitted that monthly RT-12S have been assessed by the Range Superintendent under the provisions of Rule 9(B) of CE Rules, 1944 and as the entire period is covered by the refund claim, the Range Supdt. has endorsed in the RT 12 returns that the assessment is done as per the provisions of Rule 9B of CE Rules, 1944; and when the assessments are done under Rule 9B, the question of limitation of time will not arise and they have not received any intimation to the effect that the RT-12s have been finally assessed.
9. My Ld. Brother Shri S.L. Peeran, Hon'ble Member (J) in para 6 of the order recorded by him has held that the ruling of the Apex Court rendered in the case of Mafatlal Industries Ltd. v. UOI on the aspect of protest is also applicable to the facts of the case, however without recording as to how the ruling of the Apex Court is applicable to the facts of this case. To appreciate the ratio of the judgment rendered by the Hon'ble Apex Court in the case of Mafatlal Industries Ltd. (supra), para 85 of the above judgment is relevant where duty has been paid under protest within the scope of Rule 233B of the Central Excise Rule, 1944. The Hon'ble Apex Court in para 85 of the above judgment has held that the Rule no doubt requires the assessee to mention the "grounds for payment of the duty under protest" but it does not empower the proper officer, to whom the letter of protest is given, to sit in judgment over the grounds. The Hon'ble Apex Court has also held that the assessee need not particularise the grounds of protest and it is open to him to say that, according to him, the duty was not exigible according to law. All that the proper officer is empowered to do is to acknowledge the letter of protest when delivered to him and that the acknowledgement shall be the proof that the duty has been paid under protest. The Apex Court observed that a reading of the rule shows that the procedure prescribed therein is evolved only with a view to keep a record of the payments of duty under protest and it is meant to obviate any dispute whether the payment is made under protest or not. It further observed that any person paying the duty under protest has to follow the procedure prescribed by the Rule and once he does so, it shall be taken that he has paid the duty under protest. The period of limitation of six months will then have no application to him.