JUDGMENT
S.S. Sekhon, Member (T)
1. The appellants, a Maharashtra State Government Undertaking, in appeal, against rejection of refund claim made by them of duty of excise paid under protest during the period 1/4/90 to 28/2/93.
2. The refund was rejected by the Original Authority on the grounds that the Classification List for this period was approved at the higher rate of duty and handed over to the appellants on 1/3/93, and this classification became final in as much as the appellants did not prefer any appeal against the said approval of the classification by the Assistant Collector concerned.
3. We have heard both the sides and considered the submissions and find:-
(a) The duties in this case during the relevant period, in fact, even the earlier period and subsequent to the period under dispute were paid under the provisions of Rule 233B, i.e. under protest. The appellants were contesting the exchangeability of the product by submitting that their activities do not amount to manufacture under the Central Excise Act. There is admittedly no decision or reference of disposal of this ‘payment under protes.’ We find that in the case of Neptune Polymers v. CCE, Ahmedabad [1995 (77) ELT 388], the Tribunal on an identical issue had held as follows:-
“…..Such letter of protest can not be brushed aside without specifically disposing it of by an appealable order. Mere approval of classification list filed earlier to the letter of protest, can not be said to have disposed of the letter of protest. Hence, payment made under protest is saved from limitation.”
In view of this finding, with which we respectfully agree, we do not find any reason to reject the claim of refund as arrived at by the Lower Authorities. Since in this case, no appealable order disposing off the protest letter exist. We also find that this appeal is fully covered by the decision of Neptune Polymers [1995 (77) ELT 388].
(b) We find that the appellants are paying duty under protest since 1989 and continued to pay the duty under protest even after 1/3/93. They have not discharged finally, any duty for the period, even for the period under dispute before us. In as much as for the period from 1989 to 1990, they have got the benefit, of a demand confirmed, But which was held to be barred by limitation and for the subsequent period they have been granted refund by the impugned orders. We thereof, do not find any reasons as to why for the interim period such duty liability has to be foisted on the appellants. Especially when their payments are uncontestedly under protest and that protest has not been disposed off.
4. In view of our findings, we would set aside the order of rejection of the refund claim as arrived by Lower Authorities and remit the matter back to the Original Authority to decide the refund claimed afresh as per Section 11B and on merits.
5. The appeal is disposed of.
(Pronounced in Court)