Judgment
1. The appellants availed modvat credit amounting to Rs.53,630/- on an endorsed Bill of Entry vide entry No.115 dated 30.7.94 in their RG.23A Pt.II on 4.10.94. The Headquarter's Anti-Evasion Party of Central Excise Commissioner, Jaipur visited their unit and on their advise, the appellants reversed the modvat credit. However, they filed a refund claim of this amount on 18.9.98. The only ground on which the refund is claimed is that the amount was debited by them under the pressure of the Anti Evasion party of Headquarters' office on 4.10.96. They contended that since the amount was got debited on the spot, no letter of protest was required to be filed. They contended that at the time of debiting the amount, they had endorsed a note that the same was being made under protest. Their claim is however, rejected by the Asst.Commissioner, Central Excise, Jaipur vide his Order dt. 15/18.1.99, in which it is observed that the party had contended before him that the said amount was subsequently been regularised in view of the assessed RT 12 Return for the quarter ending September, 1994. The Asst.
Collector in his order has observed that in the absence of valid protest letter in terms of Rule 233B of the Central Excise Rules, 1944, the claim filed on 18.9.98 is time barred. He has also stated that mere nothing of the words "Under protest" in the RG 23A Pt.II is not a valid form of protest. The Asst. Commissioner in his order has relied on the following decisions for rejecting the refund claim of the party:DCM Data Products vs. CCE 2. The appeal of the party against the above orders did not succeed and the Commissioner (Appeals), Jaipur rejected their appeal vide his order dt. 5.8.99 upholding the order passed by the lower authority. The present appeal is against and shri Rajeev Tandon, SDR for the respondents. The uncontroverted facts in this case are that the appellants debited the said amount in their RG 23A Pt.II account on 4.10.94 and made an endorsement 'under protest'. They however did not follow the procedure prescribed under Rule 233B to record their protest. They filed the refund claim of the amount so debited, on 18.9.98 after about four years of making the above stated debit entry.
This refund claim has been rejected as time barred by the original authority. It is the case of the appellants that the amount stood regularised on assessment of the RT 12 Return was finally assessed by the Range Supdt., on 27.1.95. The appellants are placing great emphasis on the finalisation of this Return. Therefore, once the RT 12 Return had been finalised on 27.1.95, the protest if any having been made while debiting the amount on 4.10.94 stood automatically vacated. The appellants thereafter should have filed the refund claim within six months of this date as prescribed under sub-rule 4 of Rule 173-I which is as follows: "(4) If on scrutiny by the proper officer or otherwise, he is of the opinion that the duty assessed by the assessee is paid in excess than what was payable, the said duty shall be refunded in accordance with section 11B of the Act".
3. Under Section 11B, there is no provision for suo-moto refund and since the appellants have filed the refund claim not in conformity with these provisions, the claim has rightly been held to be time barred.
The ld. Advocate for the appellants relied on the decision of Tribunal in the case of M/s. Andhra Cement Co. Ltd. vs. C.C.E. Guntur reported in 1986 (7) ECR 352 (CEGAT Ms.) and M/s. Advani Oerlikon Ltd. vs. CCE Madras reported in 1992 (38) ECR 44 (CEGAT-SRB). In these decisions, it is held that the protests can be filed even before the completion of assessment; that the provisions regarding endorsements on Gate Passes and RT 12 Return in the rules are directory in nature and that the endorsement of protest on Gate Passes is adequate form of protest. As we can see, the stand taken in the present case by the appellants is altogether different than what is dealt in the case laws cited by the ld. Advocate for the appellants. Therefore, the ration of these cases cannot be made applicable to the facts of the present case.
4. In the result, the appeal fails and the same is accordingly rejected.