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TMI Blog1986 (11) TMI 212X X X X Extracts X X X X X X X X Extracts X X X X ..... the ground that the steel produce manufactured by them were not dutiable under T.I. No. 26AA of the Central Excise tariff. However, the period to which the claims related was from 2.3.1966 to 30.12.1977. Since these claims were received after the expiry of the limitation period prescribed under Section 11-B of the Central Excises Salt Act, 1944 they were rejected by the Asst. Collector of Central Excise, Amravati. For the same reason, their first appeal to the Collector of Central Excise, Bombay was also unsuccessful. Hence M/s. Jhunjhunwalla Rolling Mills have approached the Tribunal by way of the present appeal. 2. On behalf of the appellants advocate Shri Phadnis drew our attention to order No. V-2(26AA)1599/79/6051 dated 22.9.1979 of the Appellate Collector of Central Excise, Bombay under which he allowed the appeal of M/s. Jhunjhunwalla Rolling Mills and under this order he upheld the classification of cross section of rectangular bars of less than 3 mm thickness and 125 mm width under Item 26AA. He further held that these products were eligible to exemption from Central Excise duty. Shri Phadnis drew our attention to the concluding portion of the Appellate Collector s or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aims was not paid under protest. Continuing his arguments, Shri Phadnis added that the classification list No. 14 was filed on 18.5.1979 and this was effective from 22.6.1979. The Asst. Collector approved this on 18.5.1979. The advocate further argued that the Asst. Collector s order for rejecting the claims as time barred was not correct. In this behalf, he drew our attention to the appellants letter addressed to the Supdt. of Central Excise, Nagpur. He also drew our attention to the Supdt. of Central Excise Nagpur s letter dated 15.3.1968 addressed to appellants and his further letter dated 8.4.1968 addressed to the appellants. However, in reply to the query, Shri Phadnis confirmed that the appellants did not pay duty under protest at the relevant time. However, Shri Phadnis ascribed the reason for not doing so to the fact that the Central Excise Officers did not permit them to make the required endorsements on the A.R.1 applications regarding the payment of duty under protest. Shri Phadnis argued that this would not be relevant for denying the refund as the earlier classification list had been approved by the Asst. Collector. He relied on the decision in the case of the Nandan I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... did not pay duty under protest. Shri Pattekar supported his contention on the basis of the Asst. Collector s finding in his order dated 25.4.81. Shri Pattekar further argued that the contention of the appellants that the refund claim arosed out of the decision of the Appellate Collector was not correct. This had been highlighted in the order dated 28.1.1983 of the Collector of Central Excise (Appeals) Bombay. Shri Pattekar further submitted that since the 12 claims were time barred under Section 11B they had been correctly rejected. In this behalf he relied on the decision of the larger Bench of this Tribunal in the case of Mile s India Ltd. reported in 1983 ECR242D. He further pointed out that this decision of the Tribunal had been confirmed by the Supreme Court in the same case as reported in 1985 ECR 289. In view of these judicial pronouncements, the orders of the Asst. Collector and Collector of Central Excise (Appeals) were quite correct and Shri Pattekar prayed that the same be confirmed. 4. We have examined the submissions made on both the sides. The main plunke of the appellants for claiming refund is the Appellate Collector s decision containing in his order dated 22.9. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m for not but it only determined a question of classification under Rule 173B. The provisions of Rule 173B cannot over-ride the legal requirements of Section 11B. Hence we do not find any merit in the contention of the learned Advocate. In these circumstances, we find that the orders of the Asst. Collector and the Collector (Appeals) are quite legal and correct. The same are confirmed and the appeal of M/s. Jhunjhunwalla Rolling Mills is rejected. 5. As per Shri K. Gopal Hegde, Member (Judicial) the one and the only question that arises for consideration is whether the appellant s claim for refund of duty flows from the order dated 22.9.1979 passed by the appellate Collector of Central Excise c Customs, Bombay. 6. The facts necessary for the disposal of this appeal and the contentions urged by either side had been set out in the order of brother Shri Dilipsinhji. The hot rolled rectangular bars and flat bars below 3 mm thickness and below 125 mm in width, manufactured by the appellants from fresh unused re-rollable duty-paid scrap were classified by the Central Excise Authorities under Tariff Item 26AA(iii) of the First Schedule to the Central Excise and Salt Act. And the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty has been paid under protest. Sub-section 3, however, requires an Asst. Collector of Central Excise to order refund without their being any application by the claimant if the refund becomes due to the claimant as a result of any order passed in appeal or revision. 9. Before the Appellate Collector, the present appellants have contended that they by their letter dated 22.8.1978 requested the Department to reconsider the classification and thereafter on 1.8.1978 they submitted fresh classification list and on 18.5.1979 they received the classification list classifying their product under Tariff Item No. 26 AA(iii) and they were called upon to pay Central Excise duty on the said product. Thus if the appellants had paid Central Excise duty as per the approved classification list then by reason of the order of the Appellate Collector, they would become entitled to claim refund of duty so paid without even making an application for the period from 22.6.1978, the date on which they disputed the classification of their product. The consequential relief, if any, ordered by the Appellate Collector would not only entitle the appellants to get their product classified under Tariff Item No. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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