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TMI Blog1989 (7) TMI 235X X X X Extracts X X X X X X X X Extracts X X X X ..... d., Howrah. He contended that the East Regional Bench in the above cited order had decided an identical issue. The said order touched the question of refund of duty on goods returned to the factory which is admissible subject to the prescribed conditions being followed. The mere fact that the goods were received in opened condition was held to be not militating against the grant of refund because the prohibition in respect of refund is not for opened package as such but in respect of opened package containing goods with concessional rate of duty or partial exemption by a notification issued under Rule 8. The point decided in the said case was whether the goods can be said to have been cleared initially at a concessional rate of duty or unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... question was held as not fixing any concessional rate of duty. In the circumstances, they upheld the relief granted by the Collector (Appeals) and rejected the appeals filed by the department, 3. Shri Biswas, learned SDR appearing on behalf of the department, stressed the point that the case is hit by the restrictions contained in Rule 173L(3)(l)(i). According to this provision no refund shall be admissible in respect of the duty paid in respect of opened packages containing goods with concessional rates of duty or partial exemption for the small or cottage sector as set forth in the First Schedule to the Act or by a Notification issued under Rule 8. He argued that this would imply that refund would not be admissible in respect of the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s point, Shri Mukherjee, the learned Advocate pointed out that there are a number of decisions of the Tribunal where the procedural requirements not having been fulfilled has been held to be not disqualification if there is substantive compliance with the same. 7. I have given careful consideration to the arguments advanced by both sides, I am in respectful agreement with the decision taken by this Bench of the Tribunal in the case of Deputy Collector of Central Excise, Calcutta v. Indian Aluminium Co. Ltd., Howrah vide order No. 129/Cal./83-1020 dated 20-5-1983 - 1984 (16) E.L.T. 246 (Tribunal). However, I would like to develop the decision taken therein further in the light of arguments in opposition tendered by the learned SDR. It was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t description concessional rate of duty" is not qualified by small or cottage sector and that the qualification of small or cottage sector is applicable only to the words partial exemption. No doubt, this view would apparently be in conformity with the theoryof last antecedent . But in the present context I feel we cannot give a restricted meaning to the subject expression and limit the application of small or cottage sector criterion to only partial exemption and not to concessional rate of duty. In the present case, the rate of duty applicable for Zinc Calots and other products is the effective rate of duty admissible under the relevant exemption notification. That exemption notification is not one laid down for small or cottage sector ..... X X X X Extracts X X X X X X X X Extracts X X X X
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