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TMI Blog1991 (3) TMI 228X X X X Extracts X X X X X X X X Extracts X X X X ..... erim order in Miscellaneous Petition No. 7262 of 1980, the High Court directed on 30th September, 1980, the respondents not to collect the excise duty provided the petitioner furnishes bank guarantee for the amount of duty before clearing the goods. 2. In the counter affidavit filed by the respondent-Collector, on 20th September, 1983 in the High Court, the petitioners averment that the respondents had been demanding and collecting excise duty on flush doors under Tariff Item 16B was denied and it was stated that it was the petitioners who had been categorically indicating in their classification lists from time to time that the flush doors fall under Tariff Item 16B(ii) and these classification lists were approved by the Assistant Collector. The petitioners contentions that they had been paying duty on flush doors under compulsion and duress were also denied by the respondent-Collector. It was also stated in this affidavit that the Delhi High Court had decided in the Civil Writ Petition 939 of 1977 filed by M/s. Woodcraft Products Limited, Calcutta - 1980 (6) E.L.T. 684 (Del.) on 17-3-1980 that flush doors did not fall under Tariff Item 16B but under the residuary Item 68. The U ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and without exhausting those remedies the petitioner has approached this Court. Therefore, we direct the writ petitioner to avail the alternative remedy of filing an appeal within two months from today, and the appropriate authority before whom such appeal is filed, may consider the same on merits and pass orders in accordance with law. 4. The appellants do not appear to have taken note of the averment made in para 5 of the counter affidavit of the Collector explaining the legal position about their claim for refund of Rs. 10,93,969.32. After the High Court disposed of their writ petition, they filed an appeal to the Collector of Central Excise (Appeals), Madras which was dismissed on 14-12-1984 as not maintainable under Section 35 in terms of the following order:- I have considered the appeal. I find an appeal could lie to this Authority under Section 35 of the Central Excises and Salt Act, 1944, as amended, when a person is aggrieved by any decision, or order passed under the Central Excises and Salt Act, 1944, by an officer lower in rank than a Collector of Central Excise. In this case, appellants argue that they are aggrieved by the approval given to the classification l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 27-2-1982 and direct the Assistant Collector, Central Excise, Hyderabad to demand and collect the duty accordingly from the appellant from October, 1980 to 27-2-1982 and by according other relief or reliefs which are just and proper in the circumstances of the case." 7. Shri V. Sridharan, the learned advocate for the appellants, stated that even if the direction of the High Court was found to be incorrect by the Collector (Appeals), he was bound to carry out the direction of the High Court and grant relief to the appellants. He contended that when the Court directs the case to be disposed of on merits, it has to be disposed of on merits. He placed reliance on the following decisions: (a) Oswal Spinning and Weaving Mills v. Collector of Customs - 1988 (35) E.L.T. 244 (SC) = 1989 (14) ETR 106, (b) V.M. Salgaonkar v. Collector of Customs - 1984 (18) E.L.T. 602, (c) The Honorary Secretary, Kaniyara Seva Samaj v. State of Mysore - 1969 (23) STC 155, (d) Chhat Mull Aggarwal v. Commissioner of Income Tax - 1979 (116) ITR 694, (e) Pt. Sheo Nath Prasad Sharma v. Commissioner of Income Tax - 1967 (66) ITR 646, and (f) Gauri Sahai Ghisa Ram v. Commissioner of Income Tax - 1971 ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore the High Court and, therefore, the ratio of this judgment could not apply to the present case. In fact, the Collector in paragraph 5 of his affidavit had clearly taken the stand that any claim for refund because of reclassification of the goods would have to be considered in terms of the provisions of Section 11B only. In spite of this averment, the appellants were not able to persuade the High Court in exercise of its extraordinary writ jurisdiction to waive the time limits. Having failed to do so they are trying to put an interpretation on the High Court s order which is not permissible under the law. 11. It appears that the decision of the Mysore High Court in the case of the Honorary Secretary, Kaniyara Seva Samaj v. State of Mysore (supra) is not applicable because, in that case, although the assessment under the Mysore Sales Tax Act was made by consent, there was no specific provision in the law barring appeal from a consent order. The facts of the present case show that it was the appellants who, from the very beginning till 1980 when they became aware of the Delhi High Court judgment, went on filing classification lists claiming classification of flush doors under Ite ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a concession wrongly made on a question of law. The facts of the present case show that the appellant could not be considered to be aggrieved with the order approving the classification of flush doors under Item 16B because that was what the appellants had themselves claimed before the Assistant Collector. It was not a case of denial of any concession but one of declaration and the appellant s declaration was accepted by the Assistant Collector and the classification approved. The appellant could not, in these circumstances, turn round and say that because of the approval accorded by the Assistant Collector, he felt aggrieved. The term aggrieved , as we commonly understand, could be applied to a situation in which an order adverse to his claim or declaration is passed by a competent authority. To cite an example, the case would have been different if the appellant had claimed classification under Item 68 and the Assistant Collector had approved it under Item 16B. Such is not the case, and, therefore, the ratio of this decision is not applicable. 15. We have considered the submissions and have also perused the records. Looking to the facts of the case, it appears that the appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me to know that the Delhi High Court had decided in March, 1980 that flush doors are not covered under Item 16B. Apparently, the appellant did not choose to take recourse to this remedy, because in that case, he would have been bound by the time limits prescribed under the law. It, thus, appears that the appellant s primary objective is to press his claim for refund of duty of Rs. 10,93,969.32 by referring to the orders of the Andhra Pradesh High Court. The further effort seems to be to interpret this order to mean that the Appellate Authority was duty bound to grant relief to the appellant and that this could be the only consequence of considering his appeal on merits. If the appellant had taken note of the averments of the Collector about the claim for refund, which could be considered by the authorities under Section 11B any refund would have been restricted to the period of six months. It is interesting that even though Collector (Appeals) had himself recorded, while disposing of the appeal as not maintainable, the appellant could lodge a claim for refund of duty before the appropriate authority. This appears to have been the second advice to the appellant of which he has taken ..... X X X X Extracts X X X X X X X X Extracts X X X X
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