IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:30.11.2005 CORAM: THE HON’BLE MR. JUSTICE P. SATHASIVAM AND THE HON’BLE MR. JUSTICE S.K. KRISHNAN Writ Appeal Nos.2114 & 2219 of 2002 And Writ Petition Nos.33727 to 33731, 36531 to 36540, 37585 to 37593, 37853 to 37860 and 38316 to 38322 of 2002 and WA MP.3785/02, WPMP.49901 to 49905, 54952 to 54961, 56413 to 56421, 56787 to 56794/2002. K.Thangavel, Prop.Murugan Arul Lorry Body Labour Works ..Appellant in WA.2114/02 /Petitioner in WP.23393/02 Madha Lorry Body Labour Works rep.by is Prop.S/o.Sundarrajan ..Appellant in WA.2219/02 /Petitioner in WP.21298/02 Murugesan Lorry Body Labour Works rep.by its Prop.A.Sundarrajan` ..Petitioner in WP.33727/02 Selva Vinayaga Lorry Body Builders rep.by its Prop.A.Manivannan ..Petitioner in WP.33728/02 Rajalinga Swamy Lorry Body Labour Works rep,.by prop.V.Rathinam ..Petitioner in WP.33729/02 V.Rajan Lorry Body Builders rep.by its Prop.V.Rajan ..Petitioner in WP.33730/02 Thirumurugan Lorry Body Labour Works rep.by its prop.V.Periaswamy ..Petitioner in WP.33731/02 M/s.Vellasamy Lorry Body Labour Works rep.by its Prop.V.Avudaiyammal ..Petitioner in WP.36531/02 Sri.Ramajayam Lorry Body Labour Works rep.by its prop.s.Natesan ..Petitioner in WP.36532/02 Arul Murugan Lorry Body Builders rep.by its Prop. ..Petitioner in WP.36533/02 https://hcservices.ecourts.gov.in/hcservices/ Sri Sakthi Murugan Lorry Body Labour works rep.by its Prop.G.Mariappan ..Petitioner in WP.36534/02 M/s.Mahalakshmi Motor works rep.by its prop.P.Thakshinamoorthy ..Petitioner in WP.36535/02 M/s.Vijayalakshmi Lorry Body Labour Works rep.by the Prop. K.Kumarasamy ..Petitioner in WP.36536/02 Lorry Body Labour works rep.by its Prop.G.Narayanan ..Petitioner in WP.36537/02 Kumar Lorry Body labour works rep.by its Prop. ..Petitioner in WP.36538/02 Sri Senthilvalavan Lorry Body labour works rep.by its prop.P.Natesan ..Petitioner in WP.36539/02 A.Ayyarr body Builders rep. By the prop.A.Rathinam ..Petitioner in WP.36540/02 Sri.Gowriamman body builders rep.by its Prop. ..Petitioner in WP.37585/02 Sri.Angalamman Motor works rep.by its Prop.M.Angamuthu ..Petitioner in WP.37586/02 Subbiah lorry body labour works ..Petitioner in WP.37587/02 M.Aurumugham Lorry body labour works rep.by its prop.M.Arumugam ..Petitioner in WP.37588/02 V.Muthuvel lorry body labour works rep.by its prop.v.Muthuvel ..Petitioner in WP.37589/02 Sri.Umasankar Lorry body labour works rep.by its prop.G.Raju ..Petitioner in WP.37590/02 V.Ponnusamy&Co lorry body builders ..Petitioner in WP.37591/02 Lingam lorry body labour works rep.by its prop.M.Thangavel ..Petitioner in WP.37592/02 https://hcservices.ecourts.gov.in/hcservices/ Pavalam lorry body labour works rep.by tis prop.N.S.Veerappan ..Petitioner in WP.37593/02 M/s.V.Kamaharajan lorry body labour works rep.by its prop.V.Kanagarajan ..Petitioner in WP.37853/02 M/s.Maruthi lorry Body labour works rep.by its Prop.K.Muthusamy ..Petitioner in WP.37854/02 M/s.Sri Ayyappan Lorry Body Labour Works Rep.by the prop.R.Rathinam ..Petitioner in WP.37855/02 M/s.Sri Balamurugan Lorry Body Labour Works rep.by the Prop.R.Balasubramanian ..Petitioner in WP.37856/02 M/s.Sri Ezhumalayan Lorry Body Builders rep.by the Prop.K.Kannppan ..Petitioner in WP.37857/02 M/s.Mathiyalagam Lorry Body Labour Works. rep.by the Prop.V.Mathiyalagan ..Petitioner in WP.37858/02 M/s.Sri Amman thunai Lorry Body Labour Works Rep.by the Prop.A.Marimuthu ..Petitioner in WP.37859/02 Selvam Lorry body Labour works rep.by its prop. ..Petitioner in WP.37860/02 M/s.Vigneswara Lorry Body Labour Works. rep.by the prop.P.Maruthur ..Petitioner in WP.38316/02 M/S.Sri Kamatchi Lorry Body Labour Works.rep. By the prop.R.V.Palanisamy ..Petitioner in WP.38317/02 M/s.Sri kumaravel Lorry Body Labour Works Rep.by the prop.v.Marimuthu ..Petitioner in WP.38318/02 M/s.Srinivasan Motor works rep. By the prop.C.Srinivasan ..Petitioner in WP.38319/02 M/s.Venkatachalam Lorry Body Labour Works by the prop.P.Venkatachalam ..Petitioner in WP.38320/02 M/s.Thozhilalar Lorry Body Builders rep.by the prop.P.Devan ..Petitioner in WP.38321/02 M/s.Sri Lakshmi Lorry Body Labour Works.rep. By the prop.T.Duraisamy ..Petitioner in WP.38322/02 https://hcservices.ecourts.gov.in/hcservices/ -Vs- 1. The Assistant Commissioner of Central Excise, Salem. 2. The Deputy Commissioner of Central Excise, Salem Division, Salem. 3. The Commissioner of Customs and Central Excise Excise (Appeals) Tirchirappalli. 4. Customs, Excise and Gold Control Appellate Tribunal Sastri Bhavan, Haddowus Road, Chennai-600 006 ..Respondents in WA.2114/02 1 to 4 1. The Deputy Commissioner of Central Excise, Salem Division. 2. The Commissioner of Central Excise (Appeals) No.1, Williams Road, Contonment Trichirappalli-620 001. 3. The Customs, Excise and Gold (Control) Appellate Tribunal, South Zonal Bench at Chennai rep.by its Registrar, Sastri Bhavan, Nungambakkam, Chennai-34 .. RR 1 to 3 in WA.2219/02 1. The Asst.Commissionr of Central Excise, Salem 2. The Deputy Commissioner of Central Excise, Salem Division, Salem. 3. The Commissioner of Customs and Central Excise (Appeals) Trichirappalli. https://hcservices.ecourts.gov.in/hcservices/ 4. Customs Excise and Gold Central Appellate Tribunal Sastri Bhavan, Haddows Road, Chennai-600 006. ..RR 1 to 4 in WP.Nos.33727/02, 33728/02, 33729/02, 33730/02 and 33731/02, 36531/02, 36532/02, 36533/02, 36534/02, 36535/02, 36536/02, 36537/02, 36538/02, 36539/02, 36540/02, 37585/02, 37586/02, 37587/02, 37588/02, 37589/02, 37590/02, 37591/02, 37592/02, 37593/02, 37853/02, 37854/02, 37855/02, 37856/02, 37857/02, 37858/02, 37859/02, 37860/02, 38316/02, 38317/02, 38318/02, 38319/02, 38320/02, 38321/02, 38322/02 Appeals filed under clause 15 of letters patent Act against the order passed in WP.Nos.23393 and 21298/02 dated 1.7.2002 and 19.6.2002 respectively. Petitions under Article 226 of the Constitution of India praying this Court to issue a writ of Certiorarified Mandamus to call for the records of the proceedings of the Tribunal dated 26.3.2002. (1) in appeal E 001170/2001 quash the same and direct the respondents 1 and 2 to refund the sum of Rs.5,02,790/- to the petitioner (WP.33727/02). (2) in Appeal E.001181/01 quash the same and direct the respondents 1 and 2 to refund the sum of Rs.5,40,020/- to the petitioner (WP.33728/02) (3) in Appeal E 001167/2001 quash the same and direct the respondents 1 and 2 to refund the sum of Rs.66,660/- to the Petitioner in WP.33729/02. (4) in Appeal E 001105/2001 quash the same and direct the Respondents 1 and 2 to refund the sum of Rs.1,92,640/- to the Petitioner in WP.No.33730/02. https://hcservices.ecourts.gov.in/hcservices/ (5) in Appeal E 001104/2001 quash the same and direct the Respondents 1 and 2 to refund the sum of Rs.1,61,316/- to the Petitioner in WP.No.33731/02. (6) in order NO.324/02 quash the same and direct the Respondents 1 and 2 to refund the sum of Rs.3,97,330/- to the Petitioner in WP.36531/02. (7) in order No.345/02 and quash the same and direct the Respondents 1 and 2 to refund the sum of Rs.75,430/- to the Petitioner (WP.36532/02). (8) in order No.316/02 and quash the same and direct the Respondents 1 and 2 to refund the sum of Rs.4,08,520/- to the Petitioner (WP.36533/02). (9) in order No.332/02 and quash the same and direct the Respondents 1 and 2 to refund the sum of Rs.2,78,844/- to the Petitioner (WP.36534/02). (10) in order No.326/02 and quash the same and direct the Respondents 1 and 2 to refund the sum of Rs.2,20,080/- to the Petitioner (WP.36535/02). (11) in order No.361/02 quash the same and direct the Respondents 1 and 2 to refund the sum of Rs.1,19,490/- to the Petitioner (WP.36536/02). (12) in order No.319/02 quash the same and direct the Respondents 1 and 2 to refund the sum of Rs.3,34,520/- to the Petitioner (WP.36537/02). (13) in order No.322/02 quash the same and direct the Respondents 1 and 2 to refund the sum of Rs.3,89,904/- to the Petitioner (WP.36538/02). (14) in order No.335/02 quash the same and direct the Respondents 1 and 2 to refund the sum of Rs.39,690/- to the Petitioner (WP.36539/02). (15) in order No.317/02 quash the same and direct the Respondents 1 and 2 to refund the sum of Rs.5,27,710/- to the Petitioner (WP.36540/02). (16) in order No.340/02 quash the same and direct the Respondents 1 and 2 to refund the sum of Rs.4,91,320/- to the Petitioner (WP.37585/02). https://hcservices.ecourts.gov.in/hcservices/ (17) in order No.337/02 quash the same and direct the Respondents 1 and 2 to refund the sum of Rs.3,31,540/- to the Petitioner (WP.37586/02). (18) in order No.350/02 quash the same and direct the Respondents 1 and 2 to refund the sum of Rs.1,45,210/- to the Petitioner (WP.37587/02). (19) in order No.323/02 quash the same and direct the Respondents 1 and 2 to refund the sum of Rs.4,52,260/- to the Petitioner (WP.37588/02). (20) in order No.356/02 quash the same and direct the Respondents 1 and 2 to refund the sum of Rs.7,51,690/- to the Petitioner (WP.37589/02). (21) in order No.353/02 quash the same and direct the Respondents 1 and 2 to refund the sum of Rs.1,21,640/- to the Petitioner (WP.37590/02). (22) in order No.358/02 quash the same and direct the Respondents 1 and 2 to refund the sum of Rs.6,08,808/- to the Petitioner (WP.37591/02). (23) in order No.327/02 quash the same and direct the Respondents 1 and 2 to refund the sum of Rs.1,70,850/- to the Petitioner (WP.37592/02). (24) in order No.330/02 quash the same and direct the Respondents 1 and 2 to refund the sum of Rs.90,560/- to the Petitioner in (WP.37593/02). (25) order No.354/02 quash the same and direct the Respondents 1 and 2 to refund the sum of Rs.1,04,830/- to the Petitioner (WP.37853/02). (26) order No.327/02 quash the same and direct the Respondents 1 and 2 to refund the sum of Rs.95,190/- to the Petitioner (WP.37854/02). (27) order No.338/02 quash the same and direct the Respondents 1 and 2 to refund the sum of Rs.2,41,960/- to the Petitioner (WP.37855/02). (28) order No.339/02 quash the same and direct the Respondents 1 and 2 to refund the sum of Rs.1,42,530/- to the Petitioner (WP.37856/02). https://hcservices.ecourts.gov.in/hcservices/ (29) order No.318/02 quash the same and direct the Respondents 1 and 2 to refund the sum of Rs.5,00,930/- to the Petitioner (WP.37857/02). (30) order No.355/02 quash the same and direct the Respondents 1 and 2 to refund the sum of Rs.81,020/- to the Petitioner (WP.37858/02). (31) in order No.336/02 quash the same and direct the Respondents 1 and 2 to refund the sum of Rs.20,000/- to the Petitioner (WP.37859/02). (32) order No.333/02 quash the same and direct the Respondents 1 and 2 to refund the sum of Rs.5,56,980/- to the Petitioner (WP.37860/02). (33) order No.360/02 quash the same and direct the Respondents 1 and 2 to refund the sum of Rs.50,480/- to the Petitioner (WP.38316/02). (34) order No.342/02 quash the same and direct the Respondents 1 and 2 to refund the sum of Rs.5,59,027/- to the Petitioner (WP.38317/02). (35) order No.343/02 quash the same and direct the Respondents 1 and 2 to refund the sum of Rs.1,01,370/- to the Petitioner (WP.38318/02). (36) order No.348/02 quash the same and direct the Respondents 1 and 2 to refund the sum of Rs.1,98,940/- to the Petitioner (WP.38319/02). (37) order No.359/02 quash the same and direct the Respondents 1 and 2 to refund the sum of Rs.1,99,020/- to the Petitioner (WP.38320/02). (38) order No.351/02 quash the same and direct the Respondents 1 and 2 to refund the sum of Rs.3,63,410/- to the Petitioner (WP.38321/02). (39) order No.344/02 quash the same and direct the Respondents 1 and 2 to refund the sum of Rs.65,470/- to the Petitioner (WP.38322/02). Mr. R. Thiyagarajan, Senior counsel for Mr. M. Muthappan for the Appellant in W.A.No.2114 of 2002 & for the petitioner in all the Writ Petitions. https://hcservices.ecourts.gov.in/hcservices/ Mr. C. Natarajan, Senior counsel for Mr. N. Inbarajan for the Appellant in W.a.No.2219 of 2002. Mr. V.T. Gopalan, Additional Solicitor General assisted by Mr. S. Manikumar, Senior Central Government standing counsel and Mr. S.N. Kribananadan for respondents in all the Writ Petitions and Writ Appeals. COMMON JUDGMENT (Judgment of the Court was delivered by P. SATHASIVAM,J.) Since the issue raised in all these matters is one and the same, they are being disposed of by the following common order. 2. Aggrieved by the order of the Customs, Excise and Gold Control Appellate Tribunal (in short CEGAT), Chennai 6, remitting the matter back to the Original Authority for de novo consideration, the appellants and the petitioners i.e., Lorry Body Works, filed the above writ appeals and writ petitions. 3. Writ Appeal No.2114 of 2002, is directed against the order of the learned single Judge dated 01.07.2002 made in Writ Petition No.23393 of 2002, in and by which, following his earlier order dated 19.06.2002 made in Writ Petition No.21298 of 2002, the learned Judge, after finding that the observation made in para 6 of the order impugned in that writ petition is unnecessary, dismissed the writ petition and confirmed the order of remand as ordered by the CEGAT, Chennai 6. 4. Writ Appeal No.2219 of 2002, is filed against the order of the very same learned Judge dated 19.06.2002 made in Writ Petition No.21298 of 2002, in and by which, the learned Judge confirmed the order of the CEGAT and remitted the matter back to the Original Authority for de novo consideration with an observation that the Original Authority has to pass fresh orders as per Rule 233B of the Central Excise Rules, 1944 (in short “the Rules”), de hors to para 6 of the CEGAT’s order and dismissed the writ petition. 5. The brief facts of the case of the appellant / petitioner in Writ Appeal No.2114 of 2002. (a) Lorry Body Labour Works comes under the Small Scale Sector Industry of Lorry Body Building. Lorry Body Building is done on the duty paid Motor Vehicle Chasis supplied by the customers. Body building falls under Central Excise Tariff Heading 87.07. It https://hcservices.ecourts.gov.in/hcservices/ is a specified item under the Small Scale Industries Exemption Notification No.175/86, Central Excise, dated 01.03.1986. When the new Tariff Act of Central Excise 1985 was introduced, Lorry Body Building came under Tariff 87.04 and it became dutiable. However, persons doing job works at Namakkal coming under Small Scale Industries are exempted from payment of excise duty upto Rs.7.50 lakhs of first clearance in 1986 and for subsequent financial years Rs.15 lakhs upto 1989-90 and thereafter upto Rs.20 lakhs for 1990- 1991. (b) The lorry body building work become dutiable from March, 1986. Central Excise Authorities insisted upon taking out a licence under Tariff Heading 87.04 and made them to pay duty first at 20% advalorem as per Notification 162/86 Central Excise dated 01.03.1986. ( c )The Association of Lorry Body Builders at Namakkal made a representation to the Central Government and thereafter, the duty was brought down to Rs.4,000/- per Motor Vehicle as per Notification No.278/86 dated 24.04.1986, and since they are only job workers, claimed exemption from payment of duty under the SSI Exemption Notification. The body building work is taken up by them on the duty paid Motor Vehicle chassis. The petitioners are not the manufacturers of the Motor Vehicles. However, they were compelled to pay the duty of Rs.4,000/- per vehicle. The petitioners gave a protest letter stating that there is no liability to pay duty. When the Department insisted upon the payment of Rs.4,000/- by the petitioners towards excise duty, they paid it under protest. The classification under tariff heading 87.04 was confirmed by the Assistant Collector of Central Excise after issue of the necessary show cause notice. The petitioner took the matter in Appeal to the Collector (Appeals) Tiruchirappalli, who by order dated 26.03.1993, in Appeal Nos.67 to 104 of 1993, agreed with the petitioners and accepted the classification under Tariff Heading 87.07 along with the benefit of the Exemption Notification No.176/86. The Appellate Authority passed the said order following the decision of the High Court of Punjab and Haryana reported in 1990 (47) ELT 532. (d) In the meantime, the Department, had filed a Special Leave Petition before the Supreme Court against the judgment of the Punjab and Haryana High Court. Hence, the Collector (Appeals) though agreed that the classification will be under 87.07, ordered the clearance of the vehicles on furnishing bank guarantee of Rs.4000/- per vehicle till the matter was over before the Supreme Court. The Supreme Court, accepted the judgment of the Punjab & Haryana High Court by its judgment dated 02.09.1997, in the case reported in 1997 (94) ELT 442. Following the said decision of the Supreme Court, the CEGAT, dismissed the appeals on 14.06.1999, filed by the Revenue and allowed the appeals filed by the petitioners, https://hcservices.ecourts.gov.in/hcservices/ holding that there is no liability to pay Rs.4,000/- per vehicle either in cash or by way of bank guarantee. Those who have paid the duty in cash at the rate of Rs.4,000/- per vehicle had filed applications claiming refund of the same, since the payments made in cash were made under protest as well as the decision of the Supreme Court was rendered on 02.09.1997 and the CEGAT's final decision was made on 14.06.1999, the question of limitation or time bar does not arise at all. (e) On receipt of the claim for refund, the Department issued show cause notice to the claimants, calling upon them to show cause why the refund applications should not be dismissed on the ground that they had not followed the procedure set out under Rule 233-B of the Central Excise Rules, why the claims were not made within six months from the relevant date and why they had not produced any documents to show that the duty was not passed on to their customers or any other persons? The Deputy Commissioner of Central Excise, Salem Division, Salem, by order dated 09.02.2001, rejected the refund claim on the ground that the claims are barred by limitation and on the application of the doctrine of unjust enrichment. (f) Aggrieved by the order of Deputy Commissioner, dated 09.02.2001, the petitioner filed an appeal before the Commissioner of Central Excise (Appeals) Trichy. The appellate Authority found that the payments were made under protest, it does not amount to payment of duty as the classification was in dispute, the petitioner has not passed on the excise duty to the customers, accordingly, by order dated 20.07.2001, allowed the appeal with a direction to sanction the refund. Since the refunds were not made, the petitioner and others approached this Court by way of writ petition and at the admission stage, the Department informed this Court that the 4th respondent / CEGAT, by order dated 26.03.2002 had disposed of the appeals filed against the order of the Commissioner (Appeals). By the said order, the CEGAT set aside the order of the Commissioner (Appeals) and remanded the matter back to the Original authority for de novo consideration. Aggrieved by the order of the CEGAT, the petitioner has filed Writ Petition No.23393 of 2002. (g) By order dated 19.06.2002, the learned single Judge confirmed the order of the CEGAT, dismissed the writ petition with slight modification, viz., deleting observation / direction made by the CEGAT in para 6 of its order in relation to Rule 233-B of the Central Excise Rules, 1944. Similar order has been passed by the very same learned Judge on the same day in W.P.No.21298 of 2002. Questioning those orders, the above writ appeals have been filed. 6. Challenging the similar order passed by the CEGAT, remitting the issue to the Original authority for de novo https://hcservices.ecourts.gov.in/hcservices/ consideration, aggrieved persons, i.e., Lorry Body Builders have filed the writ petitions. 7. Heard Mr. R.Thiyagarajan and Mr. C. Natarajan, learned senior counsel for the appellants and writ petitioners as well as Mr. V.T. Gopalan, learned Additional Solicitor General for the Central Excise Department. 8. After taking us through the relevant materials and the provisions applicable, the learned senior counsel appearing for the appellants / petitioners would submit that CEGAT is not justified in remitting the matter back to the Original Authority and the learned single Judge also committed an error in affirming the remittal order of the CEGAT. Mr. C. Natarajan, learned senior counsel would point out that the Tribunal itself ought to have decided the issue on merits. Mr. R. Thiyagarajan, learned senior counsel would contend that the Tribunal committed an error in remanding the matter back to the Original Authority without assigning adequate reasons, when the Commissioner (Appeals) considered and decided in favour of the Lorry Body Builders. 9. On the other hand, Mr. V.T. Gopalan, learned Additional Solicitor General, appearing for the Central Excise Department contended that the CEGAT is justified in remitting the matter back to the Original Authority, since relevant matters of fact have to be considered. However, according to him, the observation of the learned Judge directing the Original Authority to decide the issue without reference to the observation / conclusion made in para 6 of the order of the CEGAT is not correct. 10. We have perused the relevant materials and considered the rival contentions. 11. For convenience, we shall refer the parties as arrayed before the learned single Judge. 12. It is not in dispute that all the petitioners in these cases are “Lorry Body Builders” and they are converting chasis into “goods transport vehicles”. The dispute was with regard to the activity undertaken by them and the question was, whether the building of body on the chasis of transport vehicles would be covered by the levy under Section 3 of Central Excise Act, 1944 (in short “the Act”). It is their case that they were discharging duty as per the relevant provisions of the Notification and protest were lodged by them with Proper Officer. It is also not in dispute that the Hon’ble Supreme Court in the case of CCE vs. Ram Body Builders reported in 1997 (94) Excise Law Times 422 held that bus/truck bodies built chasis supplied by the customer is classifiable under Heading 87.07 of the Central Excise Tariff and benefit of SSI https://hcservices.ecourts.gov.in/hcservices/ exemption Notification No.175/86 is available. Pursuant to the said decision of the Supreme Court, the petitioners have filed refund applications with the Proper Officer. The Original Authority, viz., Deputy Commissioner, after finding that the applications are time barred, the benefit of the decision of the Supreme Court referred to above is not applicable and on the ground of unjust enrichment, rejected all the applications. Questioning the said order, the petitioners filed appeal before the Commissioner of Customs and Central Excise (Appeals). The Commissioner (Appeals), found that payments were made under protest and they did not pass on the excise duty burden to their customers, accepted the claim for refund, allowed their appeals and directed to sanction the refund. Questioning the identical orders of the Commissioner (Appeals), the Revenue filed further appeal before the CEGAT. 13. Before the CEGAT, the Revenue put forward that in some cases there was a clear cut finding about passing on incidence of duty, and the refund based on Ram Body Builders could not be granted as it has to be established whether any one or all of them were parties before the Supreme Court, in view of the decision of the Apex Court in the case of Mafatlal Industries vs. Union of India ( 1997 (89) ELT 247 SC). In the absence of those relevant materials, the petitioners are not entitled to refund prayed for and remitted all the matters back to the Original Authority. 14. The observation and conclusion of the CEGAT in para 6 of its order is to be considered. Before going into the same, it is relevant to refer the statutory provisions applicable to the cases on hand. “Section 11B of the Act, speaks about claim for refund of duty. As per sub-Section (1), a person claiming refund of any duty of excise has to make an application for refund to the Assistant Commissioner or Deputy Commissioner of Central Excise before the expiry of six months from the relevant date and in such manner as prescribed, and the application shall be accompanied by necessary documents or other evidence to establish that the amount of duty of excise in relation to which refund is claimed was collected from, or paid by him and the incidence of such duty had not been passed on by him to any other person. Second proviso to sub-section (1) of Section 11B makes it clear that the limitation of six months shall not apply where any duty has been paid under protest. https://hcservices.ecourts.gov.in/hcservices/ Sub-section (2) speaks about procedure to be followed by Assistant Commissioner / Deputy Commissioner on the application made for refund. Rule 2(14) of the Rules defines “Proper Officer”. Rule 233B refers procedure to be followed in cases where duty is paid under protest. Sub- rule (8) of Rule 233-B makes it clear that if any of the provisions of this Rule has not been observed, it shall be deemed that the assessee has paid the duty without protest. “ 15. We have already referred that the applications for refund have been made after the judgment of the Supreme Court in Ram Body Builders case was pronounced. It is also the claim of the petitioners that without knowing the correct legal position, the duty was paid under protest, and the applications for refund were made to the “Proper Officer” supported by documents and they also filed