RAMANUJAM, J.

This is a case referred to this Court by the Customs, Excise and Gold (Control) Appellate Tribunal, New Delhi, under Section 35G of the Central Excises and Salt Act, !944 (hereinafter referred to as the Act) referring the following two questions :-

1. Whether, in the facts and circumstances of the case, the letter dated 2-2-1973 and 14-3-1973, can be construed to be a protest in terms of Section 11B of the Central Excise and Salt Act 1944 ?

2. Whether, in the facts and circumstances of the case, the protest, if any, related to the question of valuation only or

"could cover rate of duty as well ?

at the instance of the Collector of Central Excise, Madras, as arising out of its order dated 9-8-1983.

2.The facts which gave rise to the above reference are as follows :

The respondent herein is a manufacturer of aerated waters assessable to duty at all material times under Item No. 1-D of the First Schedule to the Act, 20% ad valorem during the financial year 1973-74 and 20% ad valorem plus 50% thereof as auxiliary excise duty during financial years 1974-75 and 1975-76. On or about 18-6-1977, the respondent filed a claim for refund of Rs. 10, 77, 987.70, claimed to be