Full Judgment
2. We have heared Shri Harbans Singh, ld. Counsel for the appellant and Shri Jangir Singh, ld. DR.3. On a careful consideration of the submissions we find that the ground for refund in both the claims is the favourable order of the Commissioner (Appeals) dated 31-12-1990. The appellants have also indicated in the relevant classification list that duty at the higher rate is being paid under protest consequent to the decision of their appeal with the Collector (Appeals) Delhi against the Assistant Collectors Order No. 247/CE/88, dated 26-12-1988. They had further endorsed the gate passes for the clearances during the relevant period as under protest. RT 12 returns relating to some of the months during 1989 was also shown to us wherein endorsements similar to those made in the classification list has been given. In these circumstances although the absence of formal letter of protest will be a fact at variance with Rule 233B it can be reasonably held that there has been substantial compliance therewith. In this context, the case law cited before us by the ld. counsel would come to their aid. These are Tribunal's decision on the case of Mahalaxmi Industries v. Commissioner of Central Excise - 1995 (11) RLT 118. In that case the Tribunal has held that endorsements of payment of duty under protest RT 12 return was sufficient indication to the department about the assessee's intention to pay the duty under protest. The other decision cited before us is that of Tribunal in Commissioner of Central Excise v. Eskay Industries - 1996 (12) RLT 61.
This decision in substance says that where the assessee have not been accepting the grounds for demand and pursue the matter in appeal, the consequential refund on an appellate order in their favour will be admissible to them. And such a claim cannot be rejected on the ground that the duty was not paid under protest. In such a view therefore we hold that rejection of the refund claim by the lower authority in Reference is to Central Excise Rules, 1944. this case is not sustainable. The payment of duty during the relevant period will have to be construed as payment of duty under protest for the reasons stated above. The appeal is therefore disposed of by setting aside the impugned order directing grant of refund after the jurisdictional Assistant Commissioner satisfies himself regarding the endorsement of payment of duty under protest on the gate passes and RT 12 returns relating to the period in question and also in terms of Section 11B as it stands presently in its amended form. The appeal is disposed of accordingly.