IMPORTANT POINT
When the assessees have succeeded before the Collector (Appeals) on classification issue, consequently they are entitled to refund of differential duty under Section 11B(3) of the Central Excise and Salt Act, 1944.

JUDGMENT

Kapadia, J.-Being aggrieved by majority decision dated 5th January, 1996 of the Customs, Excise and Gold (Control) Appellate Tribunal, South Regional Bench at Madras in Appeal No. E/436/90/MAS, the original assessee has come by way of appeal under Section 35-L of Central Excise and Salt Act, 1944. By the impugned judgment and order, the assessee s claim for refund of Rs. 13,18,184.88 paid as differential duty on 6th April, 1987 in relation to period 1.3.1986 to 31.10.1986 came to be dismissed on the ground that it was paid voluntarily and suo motu and that the alleged protest was not in terms of Rule 233B of Central Excise Rules, 1944.

2. Appellants manufacture "Vulcanising Solution" at their factory in Madras. On 3rd March, 1986, appellants filed the classification list under sub-heading 4006.90 carrying rate of duty at 15%. The said list was approved on 10.7.86. Appellants paid the duty at 15% accordingly from 1.3.86 onwards, However, on 28.10.86 the Assistant Collector visited the appellant s factory and directed the appellants to give a revised classification list for the aforestated product under sub-heading 4005.00 carrying the rate of 40% advalorem and further directed the appellants to pay the differential duty for the past period i.e. 1.3.86 to 31.10.86. On 31.3.87, the Department issued a show cause notice alleging that said product was classifiable under sub-heading 4005 of Central Excise Tariff and further that exemption Notification No. 377/86 was not applicable. By the show cause notice issued by the Assistant Collector, the appellants were asked to show cause why duty for their past clearances should not be demanded at 40% advalorem under Section 11 A of Central Excise Act, 1944. On 6.4.87 the appellants paid the differential duty of Rs. 13,18,184.88 with the endorsement on the Challan stating that it was paid under protest. Thereafter on 10.4.87 the appellants filed a letter of protest with the Assistant Collector. In the said protest letter the appellants claimed that the product was classifiable under sub-heading 4005.00 read with exemption Notification No. 377/86 dated 29.7.86 at 15%. The show cause notice resulted in the order of adjudication by the Assistant Collector dated 10.1.88 wherein he confirmed the demand only from 1.11.86 to 30.9.87 amounting to Rs. 25,61,791.72 as the appellants had paid Rs. 13,18,184.88 on 6.4.87. Being aggrieved, the appellants preferred an appeal to the Collector (Appeals). By order dated 30.6.88, the Collector (Appeals) set aside the impugned adjudication order and allowed the classification at 15% as prayed for by the appellants. After the classification dispute ended in favour of the appellants they preferred 3 refund claims for the excise duty paid and the Assistant Collector while permitted refund of the differential duty paid by the appellants in Rs. 25,61,792/- for the period 1.11.86 to 30.9.87 and further sum of Rs. 10,78,485.76 for the period 1.2.88 to 20.7.88 rejected claim for refund for Rs. 13,18,184.88 for the period 1.3.86 to 31.10.86 on the ground that duty was not paid under protest in terms of Rule 233B of Central Excise Rules, 1944. The appeals preferred by the appellants were dismissed by the Collector (Appeals) and by the majority view of Central Excise & Gold (Control) Appellate Tribunal (in short `CEGAT ). Hence the appellants have come by way of appeal under Section 35L of the Central Excise Act, 1944.

3. Mr. Joseph Vellapally, learned senior counsel appearing on behalf of the appellants contended that the appellants had been paying excise duty @ 15% till 31st October, 1986 based on an approved price list. However, on a visit by the Assistant Collector on 28th October, 1986, the appellants were informed that they were required to pay excise duty @ 40% and accordingly the appellants were directed to pay the differential duty. That thereafter on 31st March, 1987 the Assistant Collector had issued a show-cause notice asking the appellants to show caus