1991 (5) TMI 131 - AT - Central Excise

Issues Involved:
1. Rejection of refund claim by Assistant Collector.
2. Applicability of Notification No. 149/82-C.E. and Notification No. 182/82-C.E.
3. Time-bar under Section 11B of the Central Excises & Salt Act, 1944.
4. Classification of goods under Tariff Item 68.
5. Impact of approved classification list on refund claims.
6. Legal precedents and their applicability.

Detailed Analysis:

1. Rejection of Refund Claim by Assistant Collector:
The appellants were aggrieved by the order dated 18-3-1987 passed by the Collector of Central Excise (Appeals), Bombay, which confirmed the order-in-original No. 7/Ref/86 dated 24-4-1986. The Assistant Collector had rejected the refund claim of Rs. 12,601.43 P. The appellants had initially filed a refund claim of Rs. 48,388.63 P. for the duty of excise paid on Polyethylene bags during the period 22-4-1982 to 16-7-1982.

2. Applicability of Notification No. 149/82-C.E. and Notification No. 182/82-C.E.:
The appellants argued that with the issue of Notification No. 149/82-C.E., dated 22-4-1982, all non-specified articles of plastics became fully exempted from payment of duty. Additionally, Notification No. 182/82-C.E., dated 11-5-1982, continued to exempt non-specified articles of plastics under Tariff Item 68. However, the Assistant Collector observed that the exemption Notification No. 182/82-C.E. was effective only from 11-5-1982 and did not cover the period before this date.

3. Time-bar under Section 11B of the Central Excises & Salt Act, 1944:
A show cause notice dated 26-11-1985 was issued to the appellants to show cause why the refund claim should not be rejected as time-barred under Section 11B of the Act. The appellants contended that Rule 173B and Section 11B are independent of each other and that the approval of the classification list does not affect the right of refund claim under Section 11B.

4. Classification of Goods under Tariff Item 68:
The appellants had classified the goods under Tariff Item 68 and paid duty at 8% ad valorem. They argued that the goods should have been considered as falling under T.I. 15A(2) of CET as articles of plastic, making them eligible for exemption from payment of duty. However, the Assistant Collector and the Collector (Appeals) held that the classification list was approved, and the appellants had not challenged it or paid the duty under protest.

5. Impact of Approved Classification List on Refund Claims:
The Assistant Collector noted that the order-in-appeal dated 4-2-1985 by the Collector (Appeals) did not convey any directions to allow suo moto refund but stated the refund to be granted "if otherwise admissible." The appellants had not disputed the classification list approved on 9-3-1982 and had filed the refund claim within six months under Section 11B. The Assistant Collector concluded that the refund claim was not admissible for the period before 11-5-1982 as the exemption Notification No. 182/82-C.E. was not applicable retrospectively.

6. Legal Precedents and Their Applicability:
The appellants relied on several rulings, including Bijlee Products India Pvt. Ltd., Stewards & Lloyds of India Ltd., Modi Rayon & Silk Mills, Alpha Electric Products, and Britannia India Ltd. These rulings were distinguished based on the facts of the case, particularly the lack of protest by the appellants at the time of duty payment. The ruling in Aditya Mills Ltd. held that if the appellants did not dispute the classification list, they would be deemed to have accepted it. The Tribunal found that the refund claim was rightly rejected as the appellants had not contested the classification list or paid the duty under protest.

Conclusion:
The Tribunal upheld the findings of the lower authorities, concluding that the appellants were not entitled to the refund claim for the period before 11-5-1982. The approved classification list and the lack of protest at the time of duty payment were critical factors in the decision. The appeal was rejected based on the merits of the case and the applicable legal precedents.

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