THE EXECUTIVE ENGINEER (WORKS SHOP) vs Jabalpur

CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
NEW DELHI

PRINCIPAL BENCH,
COURT NO. III

EXCISE APPEAL NO. 52363 OF 2024

[Arising out of the Order-in-Appeal No. BHO-EXCUS-001-APP-83-24-25 dated
03/07/2024 passed by The Commissioner (Appeals), Customs and Central
Excise, Bhopal (M.P.).]

M/s The Executive Engineer (Works Shop), Appellant
Madhya Pradesh Purva Kshetra Vidyut
Vitran Co. Ltd. (Madhya Pradesh State
Electricity Board),
Nayagaon,
Jabalpur (M.P.)

VERSUS

The Commissioner, Respondent
Customs and Central Excise,
Napier Town,
Jabalpur (M.P.).

Appearance

Shri Arya Bhatt, Advocate for the appellant.
Shri Din Dayal Mangal, Authorized Representative for the
Department


CORAM:
HON’BLE SHRI ASHOK JINDAL, MEMBER (JUDICIAL)
HON’BLE SHRI P.V. SUBBA RAO, MEMBER (TECHNICAL)


FINAL ORDER NO. 51416/2026
DATE OF HEARING : 20.07.2026
DATE OF DECISION: 01.09.2026
P.V. SUBBA RAO

M/s. Executive Engineer (Workshop) Madhya Pradesh
1
Purva Kshetra Vidyut Vitran Co. Ltd. filed this appeal to
assail the order dated 3.7.2024 passed by the Commissioner
(Appeals) in which he upheld the order dated 28.12.2017 passed

1. appellant

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by the Assistant Commissioner and rejected the appellant’s
appeal. The Assistant Commissioner had sanctioned refund of Rs.
1,21,500/- to the appellant under section 11B of the Central
2
Excise Act, 1944 for the period 1.3.1975 to 19.1.1978 but
rejected refund of Rs. 3,83,67,782/- for the period 20.1.1978 to
7.1.1991 on the ground that no letter of protest under Rule 233B
3
of the Central Excise Rules, 1944 was given by the appellant and
hence the limitation for filing a refund under section 11B would
apply and the refund application was filed after the time limit.

2. The appellant had purchased angles, channels, flats, MS
Road, Joists, etc. from Steel Authority of India Ltd (SAIL), cut
them to desired sizes, drilled holes in them and sent them to the
sites where they were used to erect electric poles. These
activities of cutting and making holes was considered by the
department as manufacture and hence central excise duty was,
according to the department, payable. According to the appellant,
these activities did not amount to manufacture and hence no
duty was payable. The appellant had paid duty and then filed two
refund claims – the first on 16.6.1995 covering the period
1.1.1978 to 28.2.1995 and the second dated 21.4.1995 covering
the period 1.3.1995 to 31.1.1997.

3. These applications went through several rounds of litigation
at various levels. It is now settled by the Supreme Court in the

2. Act
3. 1944 Rules

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following judgments that refund is in the nature of an execution
proceeding and a refund would arise only if the duty or tax is
paid in excess of what was assessed and not in a manner as to
modify the assessment.

(i) Priya Blue Industries Ltd. versus Commissioner of
4
Customs (Preventive)
(ii) Collector of Central Excise, Kanpur versus Flock
5
(India) Pvt. Ltd.
(iii) ITC Ltd. versus Collector of Central Excise, Kolkata
6
IV

4. However, these refund applications were decided examining
even the question as to whether the activities amounted to
manufacture and excise duty could be levied or otherwise at
various levels including by this Tribunal. In Excise Appeals No.
1498 of 2008, 1501 of 2008, 1618 of 2008 and Excise Cross
objection 315 of 2008, this Tribunal passed Final Order No.
50443-50445/2017 dated 9.1.2017. This Tribunal held that the
issue is decided clearly in favour of the assessee (appellant
herein) on merits by the Apex Court and for that reason,
dismissed the appeals filed by the Revenue and remanded the
matter in the appeal filed by the assessee to the original
authority for de-novo decision on the question of time-limit.

5. Thereafter, the Assistant Commissioner passed order dated
28.12.2017 and recorded in paragraph 6 of his order that the
Department accepted the Final Order of this Tribunal dated

4. 2004 (172) E.L.T. 145 (S.C.)
5. 2000 (120) E.L.T. 285 (S.C.)
6. Civil Appeal No. 293294 of 2009

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9.1.2017. Thus, the question of dutiability on merits was decided
finally by the aforesaid order of the Tribunal and there is no
appeal by either side assailing it.

6. Instead of filing an appeal before Commissioner (Appeals)
against the order of the Assistant Commissioner dated
28.12.2017, the appellant filed WP 5452/2018 before the Madhya
Pradesh High Court and later withdrew the Writ-Petition and then
filed an appeal before the Commissioner (Appeals) by which time
the appeal had become time barred having been filed beyond the
statutory period of appeal. The Commissioner (Appeals),
therefore, dismissed the appeal by order dated 12.3.2018 which
dismissal was upheld by this Tribunal by Final Order no
50211/2019 dated 29.1.2019 (in Excise Appeal 51779 of 2018)
and the High Court of Madhya Pradesh by judgment dated
29.1.2019 (in WP 6363 of 2019). On appeal, the Supreme Court
by order and judgment dated 15 February 2024, set aside the
orders of this Tribunal and the High Court and restored the
matter to the Commissioner (Appeals) to decide the appeal on
merits.

7. Accordingly, the impugned order was passed by the
Commissioner (Appeals) deciding the appeal against the order of
the Assistant Commissioner dated 28.12.2017.

8. Aggrieved, the appellant filed this appeal. The only point to
be decided is if the refund was correctly rejected for the period

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20.1.1978 to 7.1.1991 on the ground that the refund application
was filed after the time limit and there was no letter of protest
under Rule 233B of the Central Excise Rules, 1944 for the period.
For the previous period 1.3.1975 to 19.1.1978, the appellant had
filed letters of protest and the Assistant Commissioner sanctioned
the refund.

Submissions of the appellant

9. Learned counsel for the appellant reiterating the grounds of
appeal, submitted as follows:

(i) The Commissioner (Appeals) has erred in not accepting
the contention of the appellant that refund has already
been sanctioned for the prior period (1.3.1975 to
19.1.1978) and also for the later period (1.3.1995 to
31.1.1997).
(ii) The Commissioner (Appeals) upheld rejection of refund
on the sole ground that the appellant was not able to
produce letter of protest or the RT-12 returns or
invoices with the remark that the duty was paid under
protest during the period of dispute (20.1.1978 to
7.1.1991). He did not consider the fact that the dispute
pertains to between 1978 and 1991 and the appellant
was unable to retrieve invoices or RT-12 returns to
demonstrate that they carried the remark that the duty
was paid under protest.
(iii) Excise duty collected on an activity which did not
amount to manufacture is without the authority of law
and hence the limitation under section 11B would not
apply for refund.
(iv) The activity of cutting and punching holes does not
amount to manufacture as decided in a series of

6 EX/52363 OF 2024
decisions including the Tribunal’s remand order in this
case.
(v) The appellant had not availed any CENVAT credit and
paid duty in cash only.
(vi) The impugned order may be set aside and the appeal
may be allowed with consequential relief.

Submissions of the Revenue

10. Learned authorised representative for the Revenue
vehemently supported the impugned order and submitted as
follows:
(i) Section 11B of the Act as applicable during the relevant
period clearly stipulated a time limit for filing refund
claim with the exception that if the duty was paid under
protest, the limit would not apply.
(ii) Anyone paying duty under protest had to give a letter
as per Rule 233B of the 1944 Rules periodically. To the
extent the appellant had submitted the letters, the
payment was treated as having been made under
protest and refund was sanctioned.
(iii) However, for the period of dispute the appellant did not
produce any letter of protest and hence the limitation
under section 11B would apply.
(iv) Not only did the appellant not submit any letter of
protest but there is also no documentary evidence such
as RT-12 returns, invoices or challans with an
endorsement ‘under protest’.
(v) In the absence of any documentary evidence, the duty
cannot be presumed to have been paid under protest
and for that reason refunded ignoring the limitation.

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Findings

11. We have considered the submissions advanced by both
sides and perused the records. This is an unusual case where the
refund of the duty paid as well as the question as to whether
duty was payable were dealt together at all levels while dealing
with the refund applications. While it is contrary to the law laid
down in Priya Blue, Flock India and ITC Ltd., insofar as this
case is concerned, the issue has attained finality on merits with
this Tribunal’s order dated 9.1.2017 in favour of the appellant.
Neither side appealed against this order; on the other hand, the
Assistant Commissioner has recorded that the department
accepted the order. Thus, there is no dispute on merits that
the appellant was not required to pay central excise duty
which he had paid.

12. The contention of the appellant that since no central excise
duty was payable, the limitation under section 11B would not
apply is without any force. If duty was payable, the question of
refunding it would not arise. Refund of duty of excise would only
mean refund of an amount which was paid as central excise duty
but which was not payable.

13. If an amount is paid as duty which is otherwise not
payable, the amount has to be refunded under section 11B. On
the other hand, an amount which was payable but which was not
paid or which was short paid can be recovered under section 11A.
In the case of refunds, the tax payer would have paid more to

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the people of India (by paying in the consolidated fund of India
under the corresponding head) and in case of demands under
section 11A, the tax payer would have paid less to the people of
India than what was required as per law. In both cases- where
the demand has to be raised by issuing an SCN under section
11A and where the assessee tax payer can claim refund under
section 11B, the law provided for limitation.

14. Further, in this very case, this Tribunal by order dated
9.1.2017 remanded the matter to the Assistant Commissioner to
examine the question of limitation after holding that the issue on
merits in favour of the appellant. That order has attained finality
having not been assailed by either side. The submission of the
appellant that the limitation should not apply to its case because
no duty was payable deserves to be rejected even for this
reason.

15. The only question which needs to be decided is whether the
appellant had paid duty under protest during the relevant period.
Rule 233B of the 1944 Rules which deal with the payment of duty
under protest is reproduced below.
Rule - 233B. Procedure to be followed in cases where
duty is paid under protest
(1) Where an assessee desires to pay duty under protest he
shall deliver to the proper officer a letter to this effect
and give grounds for payment of the duty under
protest.
(2) On receipt of the said letter, the proper officer shall give
an acknowledgement to it.

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(3) The acknowledgement so given shall, subject to the
provisions of sub-rule (4), be the proof that the
assessee has paid the duty under protest from the day
on which the letter of protest was delivered to the
proper officer.
(4) An endorsement "Duty paid under protest" shall be
made on all copies of the gate pass, the Application for
Removal and Form R.T.12 or Form R.T. 13, as the case
may be.
(5) In cases where the remedy of an appeal or revision is
not available to the assessee against any order or
decision which necessitated him to deposit the duty
under protest, he may, within three months of the date
of delivery of the letter of protest, give a detailed
representation to the Assistant Commissioner of Central
Excise or Deputy Commissioner of Central Excise.
(6) In cases where the remedy of an appeal or revision is
available to the assessee against an order or decision
which necessitated him to deposit the duty under
protest, he may file an appeal or revision within the
period specified for filing such appeal or revision, as the
case may be.
(7) On service of the decision on the representation
referred to in sub-rule (5) or of the appeal or revision
referred to in sub-rule (6) the assessee shall have no
right to deposit the duty under protest:
Provided that an assessee shall be allowed to deposit
the duty under protest during the period available to
him for filing an appeal or revision, as the case may be,
and during the pendency of such appeal or revision, as
the case may be.
(8) 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.

16. For the periods both before and after the relevant period
refund was allowed without considering the limitation for the
reason that the Protest letters were available. The appellant was
not able to produce Protest letters or RT-12s or challans with
endorsement that the duty was paid under protest and it is for

10 EX/52363 OF 2024
this reason that the lower authorities have rejected the refund on
the ground of limitation.

17. The submission of the appellant is that the matter pertains
to the period from 1978 to 1991 and it is unable to retrieve and
produce the records. This is a plausible explanation for the
appellant’s inability to produce protest letter or returns with
endorsement of payment under protest. The question is whether
the appellant had protested or not about the excise duty. The
fact is that the appellant had been disputing the liability to pay
excise duty and this issue on merits was in dispute during the
relevant period, prior period and later period. Nothing in the
records suggests that the appellant had accepted duty liability for
this period but not for periods before or after it. Such could have
been the case if there was, say, an exemption notification,
applicable for some period and not for other periods. The position
of the appellant throughout has been that it was not undertaking
a manufacturing process and hence was not liable to pay excise
duty at all. This position of the appellant has been upheld by this
tribunal and has attained finality.

18. In the peculiar facts of the case and given how old the case
is and that letters of protest for the period both before and after
the relevant periods were on record and accepted and that the
litigation in this case also demonstrates that the appellant has
been contesting the liability to pay duty for the entire period, we
hold that the duty paid during the relevant period should also be

11 EX/52363 OF 2024
reckoned to have been paid under protest. Accordingly, the
appellant is entitled to the refund of duty without limitation

19. In view of the above, we set aside the impugned order and
allow the appeal. The appellant shall be refunded the duty paid
during the period of dispute.
(Order pronounced in open court on 01/09/2026.)



(ASHOK JINDAL)
MEMBER (JUDICIAL)



(P.V. SUBBA RAO)
MEMBER (TECHNICAL)

PK