ORDER
R. Jayaraman, Member (T)
1. This is an appeal brought by the Revenue against the Order in Appeal No. GSM-2330/89 Baroda, dated 20-11-1989 allowing the appeal of the respondent and setting aside the order of the Asst. Collector rejecting part of their refund claim as time-barred.
2. The undisputed facts are that the respondents filed a revised classification list on 2-11-1985 claiming the benefit of Exemption under Notification No. 234/82 C.E. This revised classification list was approved on 27-7-1987 by the Asst. Collector giving the benefit of this Notification. However, in the meanwhile the respondents had paid duty under protest by filing a letter dated 2-11-1985. Subsequently when their claim for exemption has been approved by the Asst. Collector, they filed the refund claim on 18-7-1987 for a total sum of Rs. 6,24391/-. The Asst. Collector sanctioned refund of Rs. 5,01,738/- but rejected the balance as time-barred on the ground that the relevant gate passes were not endorsed with the payment of duty under protest. When the matter was taken up before the Collector (Appeals) he held that since the classification list was approved only on 27-7-1987, till then the assessment could be construed to be provisional and he also held that the requirement of endorsement on the gate pass is only directory and not mandatory following the decision of the Tribunal in Andhra Cement Co. Ltd. – 1986 (26) E.L.T. 553 (Tri.).
3. Shri Mondal fairly agrees that this matter is squarely covered by the various decisions of this Tribunal and also the decision of the Bombay High Court in the case of Roche Products. He would submit that in this case, the duty has been collected from the customers and the department would be justified in invoking the amended Section 11B, for the purpose of considering sanction of refund.
4. After hearing both sides, we find that mere non-endorsement of the gate passes with the particulars of payment of duty under protest cannot take away the benefit of the letter of protest filed with the department as early as on 2-11-1985. The letter of protest is a mandatory requirement and the endorsement on the various documents is only of a procedural nature. This is the view we have taken, following the ratio of the decision of the Bombay High Court in the case of Roche Products -1991 (51) E.L.T. 238. Hence the view taken by the Collector (Appeals) does not call for interference. Moreover, the view taken by the Collector (Appeals) holding the assessment to be provisional, till the approval of the classification list, also finds support from the decision of the Apex court in the case of Samrat International (P) Ltd. v. Collector – 1992 (58) E.L.T. 561 (SC). Hence we dismiss the appeal. As regards Shri Mondal’s plea of applying the amended Section 11B, the issue now brought forth is not the issue covered by the appeal. It is for the authorities to deal with the claim in accordance with law.