A protest under Section 11B of the Central Excise and Salt Act, 1944 must be clear and unambiguous and cannot be inferred from a general statement of dissatisfaction with the assessment.

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 the amount of Central Excise duty paid in excess during the period between 18-3-1976 and 16-6-1977. In the said refund application, the respondent had contended that aerated waters is classifiable under Item 1-D(2) of the First Schedule to the Act, rather than under 1-D(1)(a) thereof. Agreeing with the aforesaid contention of the respondent, it was ultimately held by the Government of India, on 26th September 1980, in revision, that the respondent was entitled to the refund of duty paid in excess upto a period of one year prior to the date of filing the application for refund, while rejecting the claim for the anterior period. Accordingly, the refund came to be made in respect of the excess payment for the period of one year prior to the date of the claim for refund. Thereafter, the respondent applied on 23-12-1980, for refund of Rs. 13, 96, 582.23 p. for the period between 5-2-1973 and 17-3-1976. In that application for refund, the respondent relied upon the order of the Government of India, dated 26-9-1980 ordering refund and submitted that the respondent was entitled to refund pursuant to the said Government order, since the payment of duty in question was under protest. The said claim for refund of the excess payment for the period between 5-2-1973 and 17-3-1976 was rejected by the Assistant Collector on the ground that the claim related to a period when the old Section 11 of the Central Excise Act was in operation under which refund of duties erroneously paid was barred unless the claim was preferred within three months from the date of payment of such duty and that there was nothing in the said Act to save the claim from the aforesaid bar of limitation on the ground of payment under protest. Against the said order of the Assistant Collector, an appeal was preferred to the Collector of Central Excise and the said appeal was allowed on the ground that since the application for refund was made on 23-12-1980, after Section 11-B of the Act was introduced on 17-11-1980 itself Section 11-B that will be applicable and not the old Section 11 as has been held by the Assistant Collector. But, in terms of Section 11-B, the claim for refund was not barred by limitation, when it is paid under protest. Thereafter, the Government of India issued a show cause notice dated 18-9-1982 under Section 16(2) [Section 36(2)] of the Act, as it stood then, requiring the respondent to show cause as to why the order of the Appellate Collector of Central Excise should not be set aside and the order of the Assistant Collector of Central Excise be restored. While that suo motu aforesaid proceedings before the Government of India was pending. Section 35-P of the Act came to be introduced and as a result of that provision, the said Revisional Proceedings stood transferred to t