ORDER
G.R. Sharma, Member (T)
1. The facts of the case are that the appellants are engaged in the manufacture of cotton fabrics. They filed revised claim for Handloom cess on 16-9-1986 and on 15-10-1986 claiming that as per S.O. 115(E), dated 1-3-1975 no Handloom Cess is required to be paid when the basic duty is nil or exempted. The refund claim pertains to the period from 1-8-1984 to 31-12-1985. This refund claim amounted to Rs. 62,356.84. Another refund claim for Rs. 63,035.98 for the period from 3-1-1986 to 30-8-1986 was filed on 16-9-1986. The Assistant Collector sanctioned refund of Rs. 18,637.84 which was within six months. But rejected the refund claim amounting to Rs. 1,15,392.82. The appellants filed an appeal before the ld. Collector (Appeals). The ld. Collector (Appeals) upheld the impugned order passed by the ld. Assistant Collector and hence the appeal before us.
2. None appeared for the appellants. However, they have filed some written submissions and have prayed that the issue may be decided on merits.
3. Shri Satnam Singh, ld. SDR, appeared for the respondents and submits that the appellants have claimed that they had filed a letter of protest on 22-6-1984 before the Superintendent of the Range. He submits that Superintendent of the Range was not the proper officer for the purpose of Rule 233B. He submits that Rule 233B sets out the procedure to be followed for payment of duty under protest. That the requirement of this Rule was not complied with by the appellants inasmuch as they did not endorse the GP 1s and RT 12 returns indicating that the duty was being paid under protest; that they did not file any appeal or representation for a decision on their protest; that since the appellants did not comply with the requirements of Rule 233B, therefore, the lower authorities have rightly rejected their refund claim as they were filed much beyond the period of 6 months.
4. Heard the submissions for the ld. SDR. Perused the evidence on record as also the relevant case law.
5. Insofar as filing the letter of protest before the Superintendent of the Range is concerned, the Tribunal had been consistently holding that Superintendent being an officer of the office of the Assistant Collector is a part of the Assistant Collector’s office and, therefore, a letter filed before the Range Superintendent should be deemed to have been filed before the Assistant Collector. We note that the Tribunal in its judgment in the case of Jay Chemical Industries v. Collector of Central Excise, Ahmedabad -1997 (21) RLT 245 has held as under :-
“10. The protest letter in this case was delivered to the Superintendent of Central Excise. The Department has no case that though the Superintendent had no authority to deal with the protest letter, he dealt with it and rejected it. In the ordinary course, the letter would have been or should have been placed before the Assistant Collector under whom the Superintendent in question was functioning. That being so, there is no difficulty in treating the protest letter as having been ultimately delivered to the Assistant Collector. Even if the Superintendent fails to transmit the letter of protest, that cannot be any reason to hold that there is no valid delivery of letter of protest since the failure would be on account of the Superintendent in not transmitting the letter to the Assistant Collector. We, therefore, hold that there was substantial compliance of requirement of Rule in this regard. Collector (Appeals) proceeded on the basis detailed representation should have been filed as contemplated under Sub-rule (5) of Rule 233B. The Tribunal has considered this question in Guest Keen Williams Limited v. Collector of Central Excite, Bangalore 1997 (89) E.L.T. 209 (Tri.). The Tribunal held that a detailed representation would be naturally required where the earlier protest was a mere protest without giving reasons, but the letter of protest contained detailed reason in support of the protest and, therefore, rejection of protest on account of absence of detailed representation was not sustainable. The Collector (Appeals) did not indicate that the letter of protest in the instant case did not furnish detailed reasons in support of the protest. Therefore, the rejection of the protest on account of absence of detailed representation is not sustainable.”
We follow these judgments as precedents.
6. The Tribunal even before this case in the case of Collector of Central Excise, New Delhi v. Unik Spring (I), Faridabad, reported in 1995 (77) E.L.T. 407 has held that letter of protest filed with the Superintendent in favour of Assistant Collector is a substantial compliance of the provisions of Rule 233B of the Central Excise Rules, 1944 and that the limitation period under [Section] 11B of Central Excise [Act, 1944] are not attracted as duty was paid under protest.
7. As there was substantial compliance of Rule 233B, in the instant case, following the ratio of the judgments of this Tribunal in the above cases we hold that the refund will be admissible to the appellants. However, the claim of refund shall be governed by the rulings of the Apex Court in the case of Mafatlal Industries Limited reported in 1997 (89) E.L.T. 247.
8. Subject to the above, the appeal is allowed.