Full Judgment
No. 74/78. The classification list was approved provisionally pending enquiry regarding eligibility of taking exemption. The classification list was finally approved on 10-12-85. In the meanwhile, on payment of duty at higher rate the goods had been cleared. The assessee had filed protest letter on 29-7-81. In the meanwhile, a number of price lists had been filed by the assessee during Feb. 81 to Dec. 82. These were finalised vide order dated 24-8-83 granting deduction of 3% from the wholesale prices. Subsequently, differential duty was quantified vide letter dated 6-9-83 and was paid. These events had no relationship with the finalisation of the classification list. However, this letter dated 6-9-83 gives the impression that the assessment were to be finalised for the entire period. Perhaps, on this presumption, although the classification list was finalised much later, the refund claim was filed by the assessee on 22-12-83. In his order dated 27-1-86, the Asstt. Commissioner acknowledged the finalisation of the classification list on 10-12-85 and granted refund, on the benefit of Notfn. No.74/78. Being granted on the approval of the classification list. The jurisdictional Commissioner filed an application to the Collector (Appeals) on three grounds; the first ground was that the appellants being job worker, the claimant was not the manufacturer; the second ground was that the refund need not be given in cash but by adjustment of proforma credit. The third ground was that the duty had not been paid under protest in terms of Rule 233B. Before the Commissioner evidence was led of the payment under protest. The first was the letter dated 29-7-81 in which reference was made to the benefit of Notification No. 74/78 and their intention to pay duty under protest was given. The Commissioner dismissed this piece of evidence saying that the acknowledgment visible on the letter was not legible and also that the original was not found on the office record. He also found certain clerical defects in the internal communication of the concerned officers. On this ground he held that the refund was wrongly made and set aside the Asstt. Commissioner's Order. Hence the present appeal.
2. The evidence indicates that even when the assessment was provisional, the assessee had given their letter of protest. The refund claim was filed in Dec. 1983 and was in fact premature. In fact, the claim would be deemed to be made on the date of classification list was finalised. Strictly speaking, in terms of Rule 9B, there was no requirement for a refund claim to be made at all, but that the Asstt.
Commissioner should have proceeded to grant suo-moto refund in terms of the Rule.
3. The requirement of filing the protest would be to show that the claim would not be barred by limitation. In the case where the refund claim was properly filed or in the case where the refund should be paid suo-moto, the question of protest otherwise would not be relevant.
4. We find no merit in the logic of the Commissioner (Appeals). His order does not sustain. We set aside the same. The appeal is allowed.