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TMI Blog1987 (5) TMI 155X X X X Extracts X X X X X X X X Extracts X X X X ..... cation was rescinded by Notification No. 70/78-C.E., dated 1-3-78 and the Chapter-X procedure under which appellants were using hardened technical oil for the manufacture of soap free of duty, stood withdrawn. In view of the above Budget change, the appellants filed revised classification list under their letter dated 6-3-78. This was followed by a letter dated 8-3-78 addressed to the Assistant Collector of Central Excise, Division I, Ghaziabad, in which appellants stated that their Hardened Technical Oil fell under Item 12 of the Central Excise Tariff and not under Item 13 of the Tariff, as advised by the Central Excise Officer. It was also stated therein that as the Central Excise Officer was insisting on classification of the goods under Tariff Item 13, they submitted the classification list under protest and without prejudice to their contention that their Hardened Oil fell under Tariff Item No. 12. In the said letter dated 8-3-78, the appellants also explained the reasons why they considered that their product, Hardened Oil, would fall under Tariff Item 12 and not Tariff Item 13. Another classification list dated 3-3-79 was filed by the appellants for classification of (i) pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orders have been passed by the Assistant Collector and no cause of action had arisen in which the appellants could come in appeal before the Collector (Appeals). The appeals filed by the appellants were rejected with the above observations. Hence the present appeals before us. 2. Arguing for the appellants, Shri Ravinder Narain, learned Advocate has stated that the appellants filed two classification lists, one in March, 1978 and the other in March, 1979. The classification list filed in March, 1978 has not yet been received back with the approval of the Assistant Collector. The classification list filed in March, 1979 was received with the endorsement No. 1737, dated 23-4-79, but there is no order in the memo of approval. Classification lists were submitted by the appellants under protest and thereafter the matter was pursued with the Assistant Collector of Central Excise and then with the Collector of Central Excise for an appealable order on the correct classification of the disputed product since according to them the product was classifiable under Tariff Item 12 and not Tariff Item 13. In this connection, the learned Advocate has drawn our attention to Annexures III, IV, VII ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d, Advocate has, therefore, contended that Assistant Collector should have granted the refund claim submitted by the appellants as the duty was paid under protest and limitation prescribed under Rule 11 of the Central Excise Rules was not applicable. Based on the above arguments learned Advocate has prayed that the order of the Appellate Collector may be set aside and the refund be allowed to them. 3. Arguing for the respondent, Smt. J.K. Chander, learned J.D.R. has stated that classification list was approved by the Assistant Collector. No appeal was filed against the classification list approved by him. He could not revise his own order. This is why the refund applications were returned by the Assistant Collector to the appellants. She has argued that proper course on the part of the appellants was to file an appeal against the approved classification list and if the classification list was modified in favour of the appellants, they could claim refund. As they have not done so by following the appellate remedy against the approved classification list, the refund is not admissible to them. 4. We have considered the record of the case placed before us and the arguments advanced ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arned Collector (Appeals) erred in not complying with the requirements of sub-section (4) of Section 35-A of the Central Excises Salt Act, 1944, which enjoins that the order of the Collector (Appeals) shall state the points for determination, the decision thereon and the reasons for the decision. (viii)(a) As per the Tariff advice of the Central Board of Excise and Customs and the Meerut Collectorate Trade Notice at Annexure IX, the subject goods are not classifiable under Item No. 13 and the duty paid thereon under protest Item No. 13 is liable to be refunded." 5. We find from the material placed before us that the appellants filed classification list under protest and without prejudice to their contention that the disputed product was classifiable under Tariff Item 12 and not Tariff Item 13. After filing the classification list, the appellants have persistently pursued with the Assistant Collector of Central Excise, Ghaziabad and then with the Collector of Central Excise for a decision on the correct classification of their product and also an appeal able order. Unfortunately, the Assistant Collector omitted to issue an appeal able order. The letters sent by the appellants ..... X X X X Extracts X X X X X X X X Extracts X X X X
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