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TMI Blog1995 (4) TMI 152X X X X Extracts X X X X X X X X Extracts X X X X ..... lassification list was accordingly approved. Therefore, the licencee preferred a refund claim requesting refund of excise duty amounting to Rs. 2,27,708.22P paid on printed cartons from 18-6-1977 to 31-12-1978. The refund claim was sanctioned on 31-1-1979 and was paid by cheque dated 31-1-1979. 2. On reconsideration about the classification of the printed cartons, a show cause notice dated 1-6-1979 was issued to the appellants as to why the aforesaid amount of refund, erroneously given, should not be recovered from them under Rule 11 of the Central Excise Rules, 1944. Since Rule 11 was wrongly mentioned, a corrigendum dated 24-8-1979 was issued invoking Rule 10 instead of Rule 11 for demand of the refund erroneously given earlier on 31-1-1979. 3. In the meantime, another show cause notice dated 17-7-1975 was also issued to the appellants requiring them to show cause why exemption from payment of duty to printed cartons granted to them earlier vide Department s letter No. FI V (MISC) 68/CL/78, dated 31-12-1978 should not be withdrawn. The Range Supdt. also wrote to the appellants directing them to apply for a fresh licence which had been surrendered w.e.f. 1-1-1979. He also dire ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt Collector, to issue demand notice under Rule 10 of the Central Excise Rules demanding the repayment of the refund amount and whether it could only be subjected to review under Section 35A Central Excises Salt Act, 1944 was left to be considered by the concerned Bench as this question was not referred to the Larger Bench. In these circumstances, the matters have now come up before this Bench to decide the remaining issue in these appeals. 5. Shri M.A. Rangaswamy, ld. Counsel alongwith Ms. Radha Rangaswamy, ld. Counsel for the appellants submitted that these appeals involve two different amounts. In one case there is a demand of Rs. 2,27,708.22 being demanded under Rule 10 holding that it was a case of erroneous refund. In the other appeal, the amount involved is Rs. 1,89,592.40 which is a demand of duty on the goods for having availed of the exemption wrongly during the period January, 1979 to July, 1979. In respect of former amount, the ld. Counsel submitted that the Collector (Appeals) was in error in considering the case as one falling under Rule 173B relating to classification list whereas according to the appellants, it is a case of refund of amount paid as excess duty, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sponded to notice because the appellants have been earlier granted refund by the department nor has the department taken steps in exercise of the powers given to them for the purpose to obtain the necessary information from the appellants if they themselves had not come forward with it. The ld. Counsel, further, contended that in any case a change in the classification from the past practice can only be prospective for which he relied upon the Supreme Court decision in the case of C.C.E. v. Indian Oxygen reported in 1991 (51) E.L.T. A-36 confirming Tribunal s order reported in 1990 (47) E.L.T. 449 in the case of Indian Oxygen v. C.C.E. Further, since there was no clandestine removal of the goods, the Department cannot seek to recover the duty under Rule 9 for which he relied upon Madras High Court decision in the case of Murugan Co. v. Deputy Collector of Central Excise, Tiruchirapalli and Others reported in 1977 (1) E.L.T. (J 193). The Tribunal decision in the case of Micro Labs Ltd. v. Collector of Central Excise reported in 1992 (57) E.L.T. 446 (Tribunal) was also cited and relied upon to say that the change in classification can only be prospective. The Supreme Court decisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judgment cited by the ld. Counsel before. The Tribunal had followed the decision of the Madhya Pradesh High Court in the case Gwalior Rayon Mfg. (Wvg.) Co. v. Union of India - 1982 (10) E.L.T. 844 (M.P.) and also the Bombay High Court judgment in the case of Maneklal Chunilal and Sons Ltd. v. Commissioner of Income-tax (Central), Bombay reported in AIR 1954 Bombay 135. The Larger Bench, therefore, found that it will be more appropriate to take the views of the Madhya Pradesh High Court and Bombay High Court as they contain more detailed reasoning supported by considerable case law. We are bound to follow that decision of the Larger Bench and, accordingly, hold that there was no infirmity in the show cause notice under Rule 10 in this case. The further question that approved classification can be modified only by following the review proceedings under the Act and that the Assistant Collector has no power to modify the approved classification list, is no more good law. This is because of the necent pronouncement of 3 Judges Bench of the Supreme Court presided over by the Chief Justice of India in the case of Ballarpur Industries Ltd. v. Assistant Collector of Customs Central Excise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecessary corrective action could always be taken. But Rule 10 with which we are concerned as well as Section 11A to which a reference is made in the case of Rainbow Industries, the show cause notice which must be issued within the time frame prescribed in the said provisions must relate to a period prior thereto as the purpose of show cause notice is recovery of duties or charges short-levied, etc. We, therefore, find it difficult to accept the contention that the ratio of the decision in Rainbow Industries is that under Section 11A past dues cannot be demanded. We must, therefore, reject that contention. The observations in the said decision must be confined to the facts of that case." 8. On this account also, applying the Supreme Court decision above, we do not find any substance in the appellants contention before us, which are accordingly rejected. Further a perusal of the Assistant Collector s order dated 6-1-1981 says that besides the issue of the show cause notice, the appellants were also given clarification vide Assistant Collector s communication dated 6-12-1979 giving reasons that the printed cartons could not be classified as products of the printing industry, clarif ..... X X X X Extracts X X X X X X X X Extracts X X X X
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