9911796707
TMI Blog1984 (5) TMI 258X X X X Extracts X X X X X X X X Extracts X X X X ..... and Bend, Reducer pipe and Tea piece for welding). (viii) Fabricated straight pipes. (ix) Fabricated pipe works. (x) Pipe Flanges. (xi) Forged, Flanges and Fittings. The local Central Excise Officer classified these 11 varieties of goods under Item 68 of the First Schedule on and from 1st March, 1975, prior to which date they had been classified under Item 26AA and were exempted from duty. The Department claims that the Company did not file any appeal or revision petition against the classification and continued to pay duty on and from 1-3-1975 under protest, though without formally appealing against the classification list with which they were aggrieved. Subsequently, in a letter dated 16-7-1979, they wrote to the Superintendent raising the issue once again and claiming that the goods were not liable to any further duty as the respondents were merely buying duty paid straight tubes and plates and finishing them into shaped pieces of pipes as required by customers. The Assistant Collector subsequently referred the matter to the Collector, who finally decided the matter by his Order-in-Original No. 62/82, dated 14-8-1980, holding that all the varieties of the said go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 79, no refund is admissible. The reason for this is that the orders of the Collector or the Board cannot have retrospective effect. The classification list is the legal document on which duty is charged and unless it is reversed/modified/superseded, it continues legally in force and all duties paid prior to 16-7-1979 on the unchallenged classification lists would be considered to have been correctly paid. The Collector s order in a manner supersedes the earlier classification list but it will have effect from 16-7-1979. The only way the classification list can be amended retrospectively is by appealing against it or filing a revision application, which has not been done. Thus, any amendment can only have prospective effect. Further, payment of duty under protest is merely a device for getting around the question of time-bar and does not automatically entitle refund which should be actually admissible. In the instant case, the duties prior to 16-7-1979 having been paid on valid classification list, no refund is admissible. Though the respondents have been claiming that they were paying duty under protest on and from 1-3-1975, there is no evidence on record to show that their letter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed against held that the respondent was and is still entitled-to the refund from 1-3-1975. Under Section 11-B, where such an order is passed, the Assistant Collector is required to refund the amount without the appellant having to make any claim and the limitation period of six months shall also not apply if duty has been paid under protest. The Assistant Collector firstly erred by initiating proceedings when a claim for refund arose out of an order of the Board; and again for the second time, when the Appellate Collector directed him to grant the refund, he turned a deaf ear to the order of the Tribunal on the stay application. A decision has to be made within the ambit of Section 11B. When a correct classification order is passed, it applies to all the goods which came into existence when there was no change in law or the description of the goods and any duty recovered under an incorrect classification has to be claimed within the time-limit under Section 11B; but this does not apply where duty was paid under protest, and no question arises whether classification was disputed or not. The alleged grounds have no force and refund is due from 1-3-1975 to 31-3-1981. The contention th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anguli reiterated the written submissions. He stated that the protest lodged in March, 1975 and subsequently cannot be said to be invalid because no appeal was preferred. In support, he cited 1984 E.L.T. 461, Sirpur Paper Mills v. C.C.E., Madras - an order No. 387/83-Bench C and 1984 E.L.T. 454 Order No. 368/83-C. The issue in this case is not a dispute on classification but on refund. Section 11B clearly states that no limitation will apply when duty is paid under protest and when the order is passed in appeal, the lower authority is bound to grant the refund. He cited 1983 E.L.T. P. 1833, Madras Rubber Factory v. C.C.E., Madras and 1983 ECR P. 397D, K.G.P. Madras v. C.C.E. Hyderabad which stated that the Revenue is bound to give refund after an Order-in-Appeal. He also cited 1983 E.L.T. P. 711, Triveni Sheet Glass Works v. U.O.I. stressing the public duty to make refund. Shri Ganguli stated that since the stay had been rejected, the Department was bound to refund the money ordered by the Appellate Collector and failure to do so amounted to non-compliance with the order dismissing the application for stay. On this short ground alone, the appeal deserves to be dismissed. He cited ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellate authority has no power to pass an order for the first time assuming jurisdiction of the lower authority and the classification, being such a decision, could not be changed retrospectively. Shri Ganguly s response was that the department should not take refuge in technicalities to deprive the citizen of his legitimate dues. (1983 E.L.T. 1534 - A.V. Narasimhalu) and maintain that 1983 ECR 1931-Industrial Tractors-cited by the SDR, is not relevant in the present case. 7. We have given careful thought to the arguments on both sides. While the Department has not rebutted the respondents plea for dismissal of its appeal for not having complied with the Bench s order rejecting the request for stay of the impugned order, we do not find any force in this contention of Shri Ganguli. The order rejecting the stay application filed by the appellants did not give positive directions to the appellants nor is payment of the amount ordered by the Appellate Collector to the respondent, a pre-condition for the present appeal unlike requirement of Section 35F of the Act. We, however, do see considerable force in the other grounds urged by Shri Ganguli. The order has also not dealt wi ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
