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TMI Blog1995 (2) TMI 207X X X X Extracts X X X X X X X X Extracts X X X X ..... test on the TR challans and gate passes. They also stated that their claim for assessment under Item 68 was proper as Explanation-II under Item 23B showed that it did not include electrical insulators or electrical insulating fitting or parts thereof. Since they could not be under 23B they had only to be under Item 68. The same was reiterated by them during the personal hearing. While going through the claim the Assistant Collector found that kit-kats fuses, etc. manufactured by them were correctly classifiable under Item 23B(4) and exempt from duty in terms of Notification No. 152/71. It was only in 1979 after Explanation No. II was inserted under 23B these could be classifiable under Item 68 and the change in classification did not have any retrospective effect, appellant s claim having been received on 14-5-1980 was time barred and their contention that the payment was under protest was not tenable and they had not registered any regular protest with the proper officer as required under Rules. Accordingly, he rejected the claim. 2. The Collector (Appeals) in the impugned order gave the appellants partial relief as in para 4 of his order reproduced below : I have considered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... paid @ 10% for the period 1-4-1976 to July 1977, which works out to Rs. 7,606.14 should have been paid to the appellants." 3. When the appeal was called, none was present for the appellants, who have asked for a decision on merits based on their written submissions wherein they have cited and relied upon the following case law to say that their protest letter should be taken to cover all aspects of the claim including the claim for revising the classification of the goods under Item 68 CET, namely, 1991 (56) E.L.T. 169 (Tribunal) - Shellya Plastic Industries v. Collector of Central Excise; 1989 (41) E.L.T. 358 (S.C.) - India Cements v. Collector of Central Excise; 1990 (50) E.L.T. 133 (Trib.) - Metroark Pvt. Ltd. v. Collector of Central Excise; and 1992 (58) E.L.T. 561 (S.C.) - Samrat International v. Collector of Central Excise. 4. Ld. S.D.R., Sh. M.K. Jain, however, urged that the benefit on limitation arising out of their protest letter has already been extended to them by order of Collector (Appeals) in so far as the protest was specifically for the lower exempted rate of duty for the whole of the block period, under Notification 152/71. The claim for revised classification ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, it extends time for filing refund claim. It is well settled principle now that claim of re-classification can be made at the time of filing refund application. Since refund claim is in time after taking into consideration of the letter of protest, it is within the right of the party to claim for reclassification. Hence issue of reclassification has to be considered by the concerned authorities at the time of considering refund claim. It cannot be rejected on the ground that plea with reference to the issue of classification has not been made specifically in the letter of protest. Decisions cited by the party (supra) in the written submission also support this view. In fact, in the impugned order the Collector (Appeals) has considered the issue of classification and held that they are appropriately classifiable under 68 and not under 23-B following the ratio of the decision of Madras High Court in the case of W.S. Insulators of India and of CEGAT in the case of TELK but he rejected the benefit of classification only on the ground that protest letter filed by the party was with reference to the denial of benefit under Notification No. 152/71 but claim with reference to revised cla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e disposal of the appeal on merits. 11. Shri M.K. Jain, the learned SDR has appeared on behalf of the respondent. The learned Departmental Representative drew my attention to the order-in-original. He pleaded that the total refund amount was Rs. 23,746.95. The appellants had applied for refund on the ground that they had paid Central Excise duty @ 25% instead of @ 15% on porcelain-ware falling under Tariff Item 23B(4). They have applied for refund of excess duty from 6th April, 1976 to 28th March, 1977 and it was also contended that since the items fall under Tariff Item 68, so the amount paid at the rate of 25% be refunded being exempted under Notification No. 176/77-C.E., dated 18th June, 1977. Shri Jain, the learned SDR referred to the classification list filed by the appellant which appears on page 44 of the paper book and the tariff item has been shown under Heading 23B(4). That classification list was filed on 4th March, 1976 which was approved on 9th March, 1976. Shri Jain also drew my attention to the letter dated 31st March, 1976 written to the Inspector of Central Excise, Bahadurgarh which appears on page 43 of the paper book. Shri Jain, the learned Departmental Represe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ms, reported in 1987 (30) E.L.T. 641 (SC) = 1985 ECR 289 (SC) had held as under :- After the matter was heard for some time and it was indicated that the Customs Authorities, acting under the Act, were justified in disallowing the claim for refund as they were bound by the period of limitation provided therefor under S. 27(1) of the Customs Act, 1962, learned counsel for the appellant sought leave to withdraw the appeal. We accord their leave to withdraw the appeal but make it clear that the order of the Customs, Excise Gold (Control) Appellate Tribunal suffers from no infirmity. If really the payment of the duty was under a mistake of law, the appellant may seek recourse to such alternative remedy as it may be advised. The appeal is accordingly dismissed as withdrawn." The Tribunal had occasion to deal with a similar situation in the case of Collector of Central Excise v. Dhampur Sugar Mills Ltd., reported in 1986 (38) E.L.T. 345 (Tribunal). Para Nos. 19 to 26 of the said decision are reproduced below :- * * * * * * * The judgments cited by the appellant do not help him as the facts of this case are different. The appellant s refund claim was filed on 8th May, 1980. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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