9911796707
TMI Blog1994 (3) TMI 186X X X X Extracts X X X X X X X X Extracts X X X X ..... ther the abovementioned amount of refund should be credited to the Fund in accordance with the provisions of Section 11B(2) or paid to the applicants in accordance with the proviso thereto. The applicants are manufacturers of textile yarn and during the period 1983-84 they manufactured inter alia cellulosic spun yarn not containing any man-made fibre of non-cellulosic origin, falling under T.I. 18III(i) of the schedule to the erstwhile Central Excise Tariff. The classification lists filed by the applicants were approved by reclassifying the yarn under T.I. 18III(ii) which was challenged by way of writ petition before the Hon ble Rajasthan High Court. During the pendency of the writ the applicants were protected under interim orders of the H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. Hence this application for stay. 2. Shri D.A. Dave, learned Counsel submits that since the issue on merits was admittedly concluded in favour of the applicants, the question of return of the amount to the Department does not arise specially when the Assistant Collector had satisfied himself on the basis of the records such as gate passes and invoices that the applicants had not passed on the duty incidence to their buyers. He further submits that the lower appellate authority has exceeded his jurisdiction while passing the order and has gone beyond the scope of the appeal before him which arose out of an order passed by the Collector of Central Excise under Section 35E(2) of the CESA, 1944. Hence, the prayer. 3. Learned DR, Shri Bhar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... J) 5. [Order per : S.K. Bhatnagar, Vice President]. - With due respects to Hon ble Judicial Member, my views and orders in the matter are as follows : 6. While I agree that the appellants have not been able to make out a prima facie case for stay of the operation of the impugned order, I find that at the same time, no direction for pre-deposit of the duty amount by repayment or otherwise was called for the following reason : 7. It is observed that the Collector (Appeals) while setting aside the order of Assistant Collector and directing them to pay the refund amount simultaneously directed the Assistant Collector to re-examine the matter and determine whether the amount should be credited to the funds in accordance with 11B(2) or sho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i P.K.Kapoor, Member (T). (Harish Chander) President 11. [Assent per : P.K. Kapoor, Member (T), agreeing with Vice President]. - On the point of difference referred to me I have heard both sides. Having regard to the fact that on the question of classification of the disputed goods the matter is covered in favour of the applicants by the orders of the Tribunal and also having regard to the fact that the Assistant Collector who was directed to go into the question whether the amount should be credited to the fund or paid to the applicants had arrived at the finding that the applicants had not passed on the duty incidence to the buyer I am inclined to agree with the order recorded by the learned Vice President. Dated 2nd March, 1994 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
