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TMI Blog1992 (1) TMI 217X X X X Extracts X X X X X X X X Extracts X X X X ..... ication issue stands settled by this Tribunal's decision in the case of M/s. Amit Polymers & Composites Ltd. v. C.C.E. Hyderabad - 1989 (39) E.L.T. 674 (Tri.) = 1989 (20) E.C.R. 454 which was followed in Order Nos. 552 to 572/89-C, dated 29-9-1989 reported in 1990 (49) E.L.T. 75 (Tri.) in the case of M/s. Meghdoot Laminart (P) Ltd. v. C.C.E. and other orders, the latest in the line being Order No. 1001/90-C, dated 4-9-1990 in M/s. Uttam Laminates v. C.C.E. [1991 (52) E.L.T. 276 (Tri.)]. We, therefore, uphold classification of the products under Chapter 48. 4. As the refund of excess duty paid on the goods becomes due consequent on re-classification of the goods by the Tribunal, the appellants are entitled to the refund in terms of clause (3) of Section 11B which reads as follows : "Section 11B. - (3) Where as a result of any order passed in appeal or revision under this Act refund of any duty becomes due to any person, the Asstt. Collector of Central Excise may refund the amount to such person without his hearing to make any claim in that behalf." 5. This provision is inpari materia with Section 27(3) of the Customs Act, 1962 which has been considered by the Tribunal in the cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eir laminated sheets were classifiable under Chapter 48 instead of Chapter 39 and communicated their desire to submit refund claim for duty paid in excess for the entire period from February, 1987 and that they would henceforth pay duty under protest. They then submitted revised classification list bearing No. 3/RLP/Ch. 39/88-89, dated 2-6-1988 with effect from 2-6-1988 claiming classification under Heading 4823.90. The revised classification list was returned to them on 7-10-1988 stating that their earlier classification lists approved under Chapter 39, could not be changed. Thereafter, show cause notice was issued to the appellants proposing to reject the refund claims for the reasons stated in the notice. The Deputy Collector who adjudicated the case, held that the goods were correctly classifiable under Heading 3920.39 and he rejected the refund claims as time-barred for the periods from 17-2-1987 to 22-2-1988 and from 11-3-1988 to 1-6-1988. 10. The facts of the case show that they themselves classified the goods under Chapter 39 and the classification lists were approved. Till 1-6-1988 they did not dispute the approved classification. It was only on 2-6-1988 that they dispute ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ants are entitled to the refund in terms of Clause (3) of Section 11B, the question of time-bar is, therefore, immaterial to the present case, added in the alternative that the claim for refund be treated within time from 2-1-1987 and not from 16-3-1988 as held by the learned Technical Member, Shri D.C. Mandal. That is to say, for six months prior to the date of the letter of protest dated 2-6-1988 since the appellants came to know about the correct classification on 1-6-1988 when the judgment of the Tribunal rendered in the case of Collector of Central Excise, Ahmedabad v. Melamine Fibre Board Ltd. -Order Nos. 335 to 337/1988-C, dated 14-4-1988 [since reported in 1988 (36) E.L.T. 139] came to their knowledge. In reply, the learned S.D.R., while supporting the Order proposed by the learned Technical Member, Shri D.C. Mandal (since retired) added that the learned Judicial Member, while holding that the question of time-bar is immaterial to the present case has relied upon the case of Premier Tyres Ltd. Kalamassery v. Collector of Customs,1984 (16) E.L.T. 419 but on a reading of the said judgment it would appear that the facts and circumstances of that case are quite different from t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1-1987 claiming the classification of the said goods under sub-heading 3920.37 attracting duty at the rate of 35% ad valorem. It was approved on 31-3-1987 without any modification and the appellants received the approved classification list on 6-4-1987 and paid the duty accordingly. Thereafter, the appellants submitted their second Classification List No. 2/RLP/Ch. 39/87-88 dated 1-3-1988 in respect of the same product for the period commencing from 1-3-1988 claiming the classification under the same sub-heading 3920.37 attracting the duty at the rate of 35% ad valorem. It was also approved without any modification on 13-5-1988 and the appellants paid the duty accordingly. It further appears from the record that they submitted their third Classification List No. 3/RLP/Ch. 39/88-89 dated 2-6-1988. Thereafter the appellants vide their letter dated 2-6-1988 addressed to the Assistant Collector of Central Excise, Calcutta, stated that their said product merit classification under Chapter 48 of C.E.T. in view of the judgment delivered by this Tribunal in the appeal filed by the Collector of Central Excise, Ahmedabad, against Melamine FibreBoard Ltd. Order No. 335 to 337/1988-C, dated 14 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refund claims being filed beyond six months as prescribed under Section 11B of the Central Excises and Salt Act, 1944 are barred by limitation. The appellants contested the Show Cause Notice on the ground that their product merits Classification under Heading 4823.90 and that their two refund claims under reference are not time barred. However, the Deputy Collector negatived the said contentions of the appellants and held that the subject goods are correctly classifiable under Heading 3920.37 and also rejected the refund claims as time-barred. Against the said Order of the Deputy Collector, the appellants filed their appeal before the Collector (Appeals), but without success. Hence the appellants have come up with their present appeal before this Tribunal. 16. From a resume of the facts, as stated above, it is clear that the appellants paid the duty in terms of their two approved Classification Lists, namely, First Classification List No. l/RLP/39/87 dated 1-1-1987 effective from 20-1-1987 and Second Classification List No. 2/RLP/39/87-88 dated 1-3-1988 effective from 1-3-1988. These Classification Lists were never challenged. Subsequently, the appellants submitted their third Cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that what is required to be decided by me is as to whether the entire claim was within time or the refund is admissible for the period from 16-3-1988 to 1-6-1988 as observed by the Technical Member. For the reasons recorded by the learned brother, Shri D.C. Mandal, with which I agree, I am also of the view that the refund is admissible from 16-3-1988 and the refund claims for the period prior to 16-3-1988 are barred by limitation. 18. In the result, I answer the aforesaid question as follows : "That the refund is admissible from the period from 16-3-1988 to 1-6-1988 under Rule 11B (Should be Section 11B - Editor) of the Central Excises and Salt Act, 1944, and the claims for the periods prior to 16-3-1988 are barred by limitation, as held by the Member (Technical)." (G.P. Agarwal) Member (J) 2-12-1991 FINAL ORDER [Per: K.S. Venkataramani, Member (T)]. - In the light of the majority decision the appeal is disposed and it is held that the paper based laminated sheets are correctly classified under Chapter 48 C.E.T.A., 1985 and it is also held that the refund is admissible only for the period from 16-3-1988 under Section 11B of Central Excises and Salt Act, 1944 and the claim ..... X X X X Extracts X X X X X X X X Extracts X X X X
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