C.T.A. Pillai, Member (T)

1. The appellants' claim for refund of Rs. 8,74,542.68 on gunny bags on clearances of coloured cement made from 28.12.81 to 17.2.82 was rejected by the Assistant Collector of Central Excise, Vijayawada Division by his Order No. 22/83 dated 5.8.83 holding amongst other things that duty had not been paid under protest. Even if it was paid under protest, the procedure laid down in Rule 233-B of the Central Excise Rules, 1944 had not been followed. He also noted that a purported claim contained in letter dated 16.4.82 from the appellant had not been received in his office; copy thereof which was submitted later would show that it was not in the prescribed form and not in accordance with the Trade Notice issued as long back as in 1972. In his order, he noted that the price list filed on 28.12.81 was approved on 30.12.81. The question of paying duty under protest would arise only after according of the approval of the price list. The letter of protest is said to have been sent on 29.11.82; hence it cannot be treated as a protest in terms of Rule 233-B of Central Excise Rules, 1944. Further, R.T.12 returns have not been endorsed with the protest as required under the rules. The regular claim for refund was treated as one contained in letter dated 29.11.82; hence, he found the claim be barred under Sec. 11B of the Act and rejected the same.

2. When the matter was raised in appeal before the Collector of Central Excise (Appeals), Madras, that authority found that the appellant's claim for refund was on the ground that packing charges which was included in the assessable value was deductible and returnable to the buyer by the assessee. It is accepted by the appellant that they had erroneously included the cost of packing in the assessable value of the goods. In these circumstances, he held that the only course open to them was to lodge the refund claim and not pay duty under protest, when the price list submitted by them was approved without modification. He further noted that proviso to Rule 233B had not been fully followed; no acceptable evidence was forthcoming regarding the lodging of their claim under cover of their letter dated 16.4.82 the Certificate of Posting was not connectable. Accordingly, he rejected the appeal.

3. Before us the Advocate for the appellant pointed out that there was in fact a protest. There was a question as to the proper value to be adopted for purposes of assessment in respect of coloured cement. Pursuant to a direction given by the Department, value was taken as Rs.600/- inclusive of packing charge of Rs.100/-. This will be seen from the letter dated 29.12.81 itself. The Assistant Collector is not consistent when he states that the relevant price list was received on 29.12.81 and approved on 30.12.81 whereas letter No. PO/4966 a/55/81 dated 29.12.81 was received on the next day; by the time the letter was taken on file, the price list was already approved. A claim for refund arises in common law and is governed by the provisions of Sec. 11B of the Act. In construing a corresponding provision relating to a claim by the Department on the party (less charge claim), it has been held by the Delhi High Court that Sec. 11A contains limited power of review vide ' Bawa Potteries v. Union of India ' - 1981 ELT 114 (Delhi). This has been reiterated in the case of 'J.K. Synthetics v. Collector of Central Excise, Delhi' - 1981 ELT 328 (Del). The idea has been followed in various other cases such as 'M/s Nuchem Plastics v. Collector of Central Excise, Delhi' (1983 ECR 1888) and 'C.B. Glass Works v. Government of India' - 1983 ECR 1888D(Cegat) New Delhi. Rule 233B has been framed under Sec. 37 of the Central Excises and Salt Act, 1944. The scope of Rule making power under Sec. 37 is limited in that it is intended to "carry into' effect the purposes of this Act". The proviso to Sec. 11B(1) states that the limitation of making a claim for refund within six months from the relevant date shall no