1989 (8) TMI 230 - AT - Central Excise

Summary

Issues:
1. Appeal against denial of refund of Central Excise duty.
2. Applicability of Notification No. 138/86 and Notification No. 175/86.
3. Claim for refund based on retrospective application of Notification No. 175/86.
4. Interpretation of conflicting notifications and eligibility for refund.

Analysis:
The case involves an appeal challenging the rejection of a refund claim amounting to Rs. 22,807 by the Collector of Central Excise (Appeals), Madras. The appellant, a millboard manufacturer, initially filed a classification on 1-4-86 under Notification No. 138/86 and later filed a second classification on 6-5-86 seeking the benefit of Central Excise Notification No. 175/86. The Assistant Collector approved the first classification under Notification No. 138/86 from 1-4-86 to 5-5-86 and the second classification under Notification No. 175/86 from 6-5-86. The appellant claimed a refund, arguing that if Notification No. 175/86 had been applied from 1-4-86, no duty would have been payable, making the duty paid refundable. Both authorities rejected the plea, leading to the appeal.

The appellant contended that despite initially opting for Notification No. 138/86, the entitlement to Notification No. 175/86 should not be denied merely because it was not claimed earlier. However, the Tribunal, after hearing arguments from both sides, found no merit in the appellant's submission. The Tribunal noted that the appellant did not claim the benefit of Notification No. 175/86 until the second classification on 6-5-86, and retroactively applying it from 1-4-86 for a refund was unjustified. The Tribunal highlighted the Collector (Appeals)'s reasoning that benefits of two notifications cannot be availed simultaneously, and the duty paid under Notification No. 138/86 was correct and legal until the switch to Notification No. 175/86 on 6-5-86.

Additionally, the appellant's argument regarding Notification 260/86, dated 24-4-86, which allegedly allowed a change in the benefit claimed, was dismissed by the Tribunal. The Tribunal emphasized that since the appellant did not claim the benefit of Notification No. 175/86 before 6-5-86, the prohibition in Notification 260/86 did not apply. Therefore, the Tribunal upheld the decision to reject the refund claim, stating that no excess duty payment occurred under Notification No. 138/86, and refund provisions did not cover correctly paid duties. Consequently, the appeal was dismissed, affirming the denial of the refund claim.