IN THE HIGH COURT OF BOMBAY AT GOA EXCISE APPEAL NO. 33 OF 2008 THE COMMISSIONER OF CENTRAL EXCISE ... Appellant Versus M/S F.D.C. LTD., ... Respondent Mr. C. A. Ferreira, Asst. Solicitor General for the appellant. Mr. Rajiva Srivastava, Advocate for the respondent. Coram:- S. C. DHARMADHIKARI & R. C. CHAVAN, JJ. Date:- 15th September, 2008 P.C. 1. Heard the learned Asst. Solicitor General for the appellant and Mr. Srivastava appearing for the respondent-Assessee. 2. Perused with their able assistance the order of the Tribunal impugned in the appeal. 3. In the peculiar facts of this case, the Tribunal noticed that the respondent-Assessee has during the course of proceedings urged that while making payment of duty, during the period in dispute, the relevant invoices and ER-1 returns filed would show that they were marked with the endorsement "duty paid under protest". The learned Asst. Solicitor General does not dispute that the forms are so marked, but he places reliance upon a letter dated 15.5.2004, wherein the Assessee admits that it has not written any letter to the Department about paying duty under protest. 4. In our view, once the forms and invoices are marked as above, then, the Tribunal was right in concluding that the ground of non-forwarding of a letter as contended by the Department would not be of any significance. It does not mean that the claim for refund is ex facie not maintainable so as to extend the benefit of the proviso to sub-section (1) of Section 11-B of the Central Excise Act, 1944. All that the Tribunal has done is not granted the request for refund, but has directed the Authority to process and scrutinize the claim, in accordance with law and more particularly, after considering as to whether burden has been passed by the respondent-Assessee on to the consumer. 5. In our view, the findings are rendered by the Tribunal in the facts peculiar to this case. There is no substantial question of law which arises for consideration and opinion. When pure findings of facts based on material produced culminated in the decision of the Tribunal, we need not exercise our jurisdiction under Section 35(G) of the Act. 6. The appeal is, therefore, dismissed. No costs. S. C. DHARMADHIKARI, J. R. C. CHAVAN, J. ssm.