9911796707
TMI Blog1996 (10) TMI 230X X X X Extracts X X X X X X X X Extracts X X X X ..... s case the dispute has arisen due to the classification of `Waste Scrap of the above product. Earlier the appellants had submitted Classification List No. 1/89, dated 10-3-1989 clas-sifying the said `Waste Scrap under Tariff Heading No. 39.15 showing the effective rate of duty at 40% ad valorem in view of Notification No. 54/88, dated 1-3-1988 (Sl. No. 6), which was duly approved and the appellants made clearances after payment of duty accordingly. In the process of manufacturing the Polyurethane Foam, two types of Waste Scrap arise, namely, (1) Irregular Cuttings and Trimmings of the Foam Sheets; and (2) Top Skin, Bottom Skin, Side skin and Shreddings (in the form of hard substance generated due to want of proper chemical reactio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unt and Rs. 5,41,840.00 through RG 23A Part II. On 21-5-1990, the Assistant Commissioner of the Division issued a Show Cause Notice C : No. V(30)D/52/90/552 demanding duty of Rs. 17,34,574.50 on the clearances made during 12-1-1990 to 7-3-1990 at Nil rate of duty and also proposing to impose a penalty for contravention of the provisions of Central Excise law. After contest by the appellants, the Commissioner of Central Excise, Meerut, passed Adjudication Order No. 59/Collector/90-91, dated 2-5-1991 accepting the appellants contention about the classification and dropping the demand as well as the proposal for imposing penalty. The appellants took the credit on 3-7-1991 of the aforesaid two amounts of duty paid by them under protest. Rs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .00 of the amount of credit taken in RG 23A Part II under Rule 57(I) of the Central Excise Rules. The Commissioner further observed that since the classification list, assessment of waste, parings and the scrap has been kept provisional, the duty already paid under protest on waste, parings and scrap would be finalised on the finalisation of classification/assessment of waste, paring and scrap by the jurisdictional Assistant Commissioner and the credit taken in this regard in PLA and RG 23A should be reversed. The Commissioner also imposed personal penalty of Rs. 1,000/-. 3. Shri Vinay Garg, the learned Counsel alongwith Shri Bipin Garg, the learned Counsel appeared for the appellants and contended that the department had sought to get th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l do so shortly by the end of October, 1991. The learned Departmental Representative also contended that the bar of limitation will not apply as they had been told by the Superintendent within six months of taking the credit to reverse the same. 4. We have carefully considered the submissions. We find that on the issue of the classification of Top Skin, Bottom Skin and Side Skin and about an eligibility of the goods of Notification No. 53/88 the matter now stands settled by the Tribunal decision in which the Tribunal had upheld on classification under Heading 39.15 CETA and held that the goods will be eligible for exemption under the notification as reported in 1996 (85) E.L.T. 157 (Tribunal) in the case of Collector of Central Excise, Me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The department should have taken steps to finalise the matter especially when it is seen that the Tribunal has also pronounced upon the classification issued in June, 1994. In this view of the matter what emerges is that the appellants were at fault in taking the credit in PLA and RG 23A Part II in this case on their own without any direction or permission from the proper officer. They should have filed a refund claim under Section 11B because payment of duty under protest also will not dispense with the necessity of filing refund claim under Section 11B but it only saves the claim for being hit by limitation nor is the action of the appellants in this case covered by provisions of Rule 173-I for which a direction by the Superintendent in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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