ORDER
Shiben K. Dhar, Member (T)
1. This appeal by Revenue arises out of Order-in-Appeal No. 394-CE/DLH/91, dated 27-3-1991 of Collector (Appeals) New Delhi.
2. The appellant Revenue seeks relief on the ground that Collector (Appeals) has failed to appreciate that letter of protest was delivered to Supdt. and not to Asstt. Collector who in terms of Trade Notice No. 34/CE/87 is Asstt. Collector for the purpose of Section 11B.
3. Learned DR submitted that the letter of protest ought to have been filed to Asstt. Collector and not to Supdt. and therefore Collector (Appeals) had erred in upholding Order of Asstt. Collector granting such refund which have been paid under protest which would not attract limitation period.
4. Learned Consultant for the respondents submitted that provisions of Rule 233B are directory and not mandatory and right of refund cannot be denied on a mere technicality. He cited the following Case Laws in support of his contention:
(1) In case of Indian Pistons Ltd. v. CCE – reported in 1990 (46) E.L.T. 3 (S.C).
(2) In case of Roche Products Ltd. v. U.O.I. – reported in 1991 (51) E.L.T. 238 (Bom.).
(3) In case of DCM Data Products v. CCE – reported in 1991 (66) E.L.T. 635 (Tribunal).
5. Heard both sides. The short question to be decided here is whether a letter of protest delivered to Supdt. is a valid document for paying duty as required. In case of Indian Pistons Ltd. (supra) the Hon’ble Supreme Court held that Rule 233B does not prescribe any particular form of protest and therefore it is not possible to say on the basis of this rule that the appellants in that case must be deemed to have paid the duty without protest. The Hon’ble Court relied upon the earlier decision of the Division Bench of the Apex Court in case of Indian Cements Ltd. v. CCE – reported in 1989 (41) E.L.T. 358 (S.C.). In case of DCM Data Products v. CCE (supra) Tribunal held that letter of protest was adequate for considering the duty was paid under protest and as long as there is substantial compliance with Rule 233B, failure to endorse RT 12 returns and GP would not affect the refund claims. In case of ICM Engineering Co. P. Ltd. v. CCE – reported in 1989 (44) E.L.T. 744 (Tribunal) it was held that Supdt. being the Officer-in-Charge of Revenue supervising all the payments, records etc. is a proper officer to receive letter of protest under Rule 233B of Central Excise Rules, 1944. In case of Andhra Cement Co. Ltd. v. CCE – reported in 1986 (26) E.L.T. 553 (Tribunal) it was held that letter of protest is a valid document for registering protest and non-endorsement of duty paid under protest on RT 12 return not an infirmity which bars the claim of refund. Endorsements are merely directory and not mandatory.
6. Following the ratio of the case laws cited above I hold that sending letter to the Supdt. who in fact is a proper officer is not an infirmity such as would disentitle the respondents from claiming refund and that there has been substantial compliance with provision of Rule 233B. In view of this the Revenue Appeal is rejected and the impugned Order is upheld.