9911796707
TMI Blog1990 (2) TMI 192X X X X Extracts X X X X X X X X Extracts X X X X ..... fund therefrom. 2. The impugned order has held that the product is classifiable under Tariff Item 19-(III) whereas the appellant claims re-classification under T.I. 68 and refund of duty paid in excess under T.I.19 (III) for the period of 6 months prior to the filing of the refund claim. 3. There is no dispute regarding the composition of "rexin" and admittedly the "cotton fabric" content is only 12.5%. It has been well-settled by several decisions of the Tribunal and various High Courts and the Supreme Court that predominance of cotton content determines classification of a product under Tariff Item 19(111). The latest decision of the Tribunal on this issue is reported in 1989 (42) ELT 659 in the case of Collector of Central Excise v. Fe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f amount of duty paid by mistake under T.I. 19(111) tantamounts to staking a refund claim, he relies upon the following decisions :- (1) 1984 (15) E.L.T. 455 Sirpur Paper Mills Ltd. v. CCE (2) 1987 (30) E.L.T. 315 CCE v. Hindustan Bobbin Industries (3) 1989 (23) ECR 649 Orient Paper Mills v. CCE (4) 1989 (42) ELT 29 G.T.C Ltd. v. CCE Shri Jain contends that even the Department treated this letter as a refund claim and that was the reason for the reply of the Collector dated 26-12-1985, directing the appellant to prefer a refund claim. He further submits that in the refund claim of 26-2-1986, reference is made to the earlier letter cited above and urges us to hold that the letter of 6th November 1985 is a claim for refund, in view of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... facture of - Duty on Rexin under Item 19 (III) of the 1st schedule objected to - review of - Petition - submitted. It is submitted that I have been issued with L.4 No. 1/Rexin/75 for a unit situated at Kanudian. I started manufacturing Rexin from 1975 onwards after submission and approval of classification and price lists. At the time, my product, was classified by the Department under Item 19 (III) of the first schedule to the Central Excise and Salt Act, 1944.I submit that I have been assessed and taxed as such all these years and the following are the details of Central Excise duty paid by me approximately. Year Amount 1975-1976 3,068-98 1976-1977 7,54,774-95 1977-1978 16,73,625-07 1978-1979 26,28,752-48 1979-1980 38,01,155- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ight. I submit that for a long time, due to ignorance, we accepted the classification made by the Department, classifying our product under Item 19 (III) of the first schedule to the Central Excises and Salt Act, 1944. But very recently we have realised our mistake that the Cotton fabrics do not predominate. I am hereunder furnishing the formula with the weight of cotton fabrics in our product. PVC 300 Grams DOP 100 " Whiting 350 " Paraffin wax 125 " /Per metre Cotton Fabrics 125 " 1,000 " The above figure will clearly show that in the product the weight of cotton is very less and does not predominate. I submit that having realised the mistake committed both by me and Excise Department, I approach the benevolent Collector and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Excise, Calcutta v. Hindustan Bobbin Industries Limited, Calcutta [1987 (30) E.L.T. 315]. 12. In this case, in the letter of 6-11-1985, the appellant has objected to imposition of duty on rexin under Item 19 (III) of the Ist Schedule to the CESA, 1944 and has asked for review of the same, and rectification of the mistake. They have not even stated as to what, according to them, was the correct classification. In our view, this letter cannot be regarded as a staking of the appellants' claim for refund. It can only be treated as a representation to the Collector for re-classification of the product. It cannot be construed as a refund claim. The decisions relied upon by the appellants' Counsel are not applicable to this case as the facts o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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