ORDER
K. Prakash Anand, Member (T)
1. The facts in this case are that on 17-6-83, appellants intimated the department that they proposed to pay Excise duty on Tyre Cord Fabrics (un-processed) under protest. On 2-5-1984, a Show Cause Notice was issued to the appellants that by virtue of Notification No. 156/83-CE dated 21-5-1983, it was quite clear that unprocessed Tyre Cord Fabrics attracted additional duty of excise @ Rs. 4/- per Kg. and that, therefore, they had no valid reasons for payment of duty of excise under protest. Appellants were, therefore, asked to show cause as to why the payment of duty under protest should not be vacated.
2. In the orders passed by the Assistant Collector, it was held that M/s. Shriram Fibres had not initiated any redressal proceedings in regard to the assessment of the fabrics in respect of which they proposed to pay duty under protest and the payment of additional excise duty @ Rs. 4/- per Kg. on un-processed tyre cord fabrics under Tariff Item 22 was correct in law in terras of Notification No. 156/83 dated 21-5-1983. The Assistant Collector vacated the payment under protest. When the matter went up in appeal, this order was upheld by the Collector (Appeals). It is against these orders that the appellants are now before us.
3. We have heard Shri V. Lakshmikumaran, advocate, on behalf of the appellants and Shri A.S. Sunder Rajan JDR for the department.
4. The learned advocate has re-stated the reason why the appellants wanted to pay duty under protest. It is pointed out that the Hon’ble Supreme Court had decided on 8-5-1980, in the case of Delhi Cloth & General Mills Co. Ltd. v. State of Rajasthan and Ors. 1980 ELT 383, that unprocessed nylon tyre cord was classifiable as fabrics under Tariff Item 22. In separate proceedings, the Calcutta High Court decided on 28-2-1980 that unprocessed nylon tyre cords were not fabrics but only nylon yarn, since no further manufacture had taken place. This was in the case of Collector of Central Excise, Calcutta v. Madura Coats Limited – (1982 E.L.T. 129 (Cal.). The appeal to the Hon’ble Supreme Court against this order was dismissed on 11-4-1983 (Union of India and Ors. v. Madura Coats Ltd. -1983 ECR 1625). In the meantime, the learned advocate submits that the DCM have filed a writ before the Supreme Court in view of the position that has emerged on account of the apparant conflict in the decisions. It is submitted that all that the appellants asked for is that they may be permitted to await the outcome of the writ of DCM and in the meantime their letters of protest be kept pending.
5. Shri A.S. Sunder Rajan reiterates the view taken by the lower authorities. He emphasizes that the appellants are seeking to follow a peculiar procedure, as there is no challenge to the assessment order or to the classification list. They are seeking to avail of the procedure under Rule 233B of Central Excise Rules, 1944, but they have not even furnished the grounds for protest in terms of the requirements of the rule. Where was the question of allowing them to pay duty under protest, says the learned Departmental Representative, when the appellants were neither in appeal nor in revision. Shri Sunder Rajan adds that the DCM judgement was specific on the issue of classification, whereas the Madura Coats Ltd. decision related at stage of levy and valuation.
6. We have given due consideration to the submissions made from both sides. We find that the legality of the entire proceedings, sought to be initiated by the appellants, has been correctly analysed by the learned Collector (Appeals). The appellant’s case is simply that there is a conflict in two orders passed by the Hon’ble Supreme Court, which affects their liability to duty. They hold that they are not liable. But unfortunately, this by itself does not entitle them to the benefit of the procedure under Rule 233B of Central Excise Rules, 1944. This rule clearly provides that in cases where remedy of appeal or revision is not available to the assessee against an order or decision which necessitated him to deposit the duty under protest, he may within 3 months of the date of delivery of the letter of protest give a detailed representation to the Assistant Collector of Central Excise. On the other hand, where the remedy or appeal or revision is available to him, he may file an appeal or revision within a period specified for filing such appeal or revision, as the case may be. Now, as the learned Departmental Representative has pointed out, this is a case where the appellant has obviously not chosen to follow the normal procedure under Central Excise Rules, which would have entitled him to pay the duty under protest under Rule 233B.
7. Without taking any view on whether there is any conflict in the two orders of the Hon’ble Supreme Court, we hold that in the light of the facts of the case, appellants have no right to pay duty under protest under Rule 233B of Central Excise Rules, 1944.