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TMI Blog2015 (6) TMI 465X X X X Extracts X X X X X X X X Extracts X X X X ..... e. - Appeal No. E/807/05-Mum - - - Dated:- 22-4-2015 - P K Jain, Member (T) And Ramesh Nair, Member (J),JJ. For the Appellant : Shri Mayur Shroff, Adv. For the Respondent : Shri V K Shastri, Assistant Commissioner (AR) ORDER Per: P K Jain: Brief facts of the case are that one Kamalakshi Finance Corporation Ltd. was manufacturing PVC insulated tapes on behalf of the appellant. There was dispute about the classification of the same. The Revenue contention was that the same are classifiable under Heading 3919 attracting excised duty of 25% + 5% SED while Kamalakshi Finance Corporation Ltd.'s contention was that the same are classifiable under 8546 attracting duty of 15% + 5% SED. The matter was finally decided und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tographics India Ltd. reported in 2004 (166) ELT 3 (SC), had taken a contrary view. 5. The learned AR reiterates the finding of the Commissioner (Appeals) and submits that the protest lodged by Kamalakshi Finance Corporation cannot be made applicable to the appellant as the appellant has never protested. It was also submitted that that the Hon'ble Supreme Court in the case of Allied Photographic India Ltd. has already taken a view that the decision of the Supreme Court in the case of National Winder (supra) is per incuriam. In view of the said position, the refund claim is barred by limitation. It was also submitted that even on merits, the appellant has no case as the goods were cleared by Kamalakshi Finance Corporation Ltd. not to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 11.2003, the Division Bench (Hon. S.N. Variava H.K. Sema, J.J.) has referred the matter as stated above to the Larger Bench in the light of conflict which the Division Bench noticed between the earlier judgments of this Court on one hand and paragraph 104 of the judgment of the Constitution Bench of nine-Judges in the case of Mafatlal Industries Ltd. (supra). Hence, by this judgment, we have clarified the position in law. 7. In view of the above decision of the Hon'ble Supreme Court, we do not find any merits in the contention of the appellant that the refund claim has been filed within the prescribed time limit. We are not going into the question of locus standi of the appellant as also doctrine of unjust enrichment. The appeal i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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