K. Sankararaman, Member (T)

1. This appeal by M/s. Metroark Pvt. Ltd. is directed against Order-in-Appeal-dated 6-8-1984 passed by the Collector of Central Excise (Appeals) whereby he had upheld the order of Assistant Collector of Central Excise, disallowing part of their refund claim filed with him in respect of Gate Passes not stamped with the endorsement "Under Protest". The Collector (Appeals) held in his impugned order that the contention of the Assistant Collector was correct in terms of Rule 233B of the Central Excise Rules, which clearly provides that an endorsement should be made on the gate pass that duty had been paid under protest. He went on to add that if the appellants had not made such indication, the assumption that the clearances were made without protest would be justified.

2. The appellants were represented by Shri K.K. Banerjee, learned Advocate, when the appeal was heard. He submitted that the appellants had been paying duty under protest on their products which were wrongly classified by the department under Tariff Item 15A, as against the correct classification 68 of the Central Excise Tariff. The Collector of Central Excise, Calcutta Collectorate had passed an order on the classification issue upholding their contention. Pursuant to that a number of refund claims had been settled in their favour. Only a sum of Rs. 33,811.18 had been withheld for the reasons set out in the Appeal. Shri Banerjee contended that refunds relating to earlier periods as well as subsequent periods had been settled by the department in their favour conceding that duty had been paid under protest. Such being the case, the payment of duty during the intervening period which is the relevant period in the present appeal cannot be without protest. He pleaded that the appeal may be allowed and consequential benefit granted to them.

3. Shri M.N. Biswas, learned SDR appeared for the respondent Collector. He pointed out that it cannot be presumed that because duty had been paid both before and after the material period under protest, duty had been paid under protest during that period also. Refund cannot be granted under any assumption or presumption. He, therefore, opposed the contention raised on behalf of the appellants and pleaded that the appeal may be rejected.

4. We have considered the submissions of both the sides. We have also perused the appeal petition, the impugned Order-in-Appeal and other records. The appeal contains a strong argument that the Collector (Appeals) had wrongly gone by the provisions of Rule 233B which had come into effect only from 11th May, 1981 whereas the refund claimed relates to payment of duty during the period April, 1978 - September, 1978 and the provisions of Rule 233B could not obviously be fulfilled for such clearances. If the endorsement "Under Protest" was not there in the Gate Passes during the particular period, it cannot be presumed that duties were paid without protest. As has been correctly contended in the appeal, the requirements of Rule 233B which was introduced in May 1981 cannot be applied to assessments made during 1978, which form the subject matter of the present appeal. Hence the findings of the Collector have got to be set aside. But the matter needs to be looked into closely to see if payment of duty under Item 15A was made under protest simpliciter, shorn of the procedural trappings introduced subsequently. In this respect we find that the appellants had written a letter dated 21-3-1978 wherein they had referred to their claim that their products did not satisfy the description "Artificial and Synthetic Resin". They had also referred to Trade Notice dated 3-3-1978 and pointed out that Silicone Fluids etc. are not classifiable under Item 15A. They had submitted the classification list (Form I) accordingly and stated that they were within the provisions of SRP to pay duty at the lower rate viz. 5% under Item 68. In this letter they had also stated that they had given the necessar