9911796707
TMI Blog1997 (6) TMI 32X X X X Extracts X X X X X X X X Extracts X X X X ..... transmission and distribution net work established by the Board. A classification list effective from 1-1-1989 was filed by the petitioner before the Respondent - Assistant Commissioner, Collector of Central Excise, Mysore. The list carried the following significant remark. "This list is filed subject to CEGAT's decision on our appeal filed against the order of the Central Excise, Bangalore." According to the petitioner the remark extracted above, was intended to convey that the items mentioned in the list did not involve any manufacturing process and were therefore not excisable. It was also intended to convey that the dispute relating to the excisability of the items be kept alive. 2.By his communication dated 31st of January, 1989 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... error which was palpable on the face of record. He further contended that the approval of the list, without the disclosure of the reasons, for such approval prevented the petitioner from filing an appeal against the adjudication and claiming refund of the amount of duty paid on the said items. A mandamus was according to the learned Counsel pre-eminently justified in the facts and circumstances of the case. 4.Mr. Ashok Haranahalli, learned Counsel appearing for the Respondents on the other hand contended, that the petitioner had filed a list which the Respondent was entitled to accept on the terms stipulated therein. He urged that there was no necessity of passing a detailed or a speaking order, as contended by the other side, having rega ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... old an enquiry may however arise only in case the proper Officer takes a view contrary to the one, suggested by the Assessee who files the list. In cases where the proper Officer does not find any fault with the list or the terms subject to which it is filed no further enquiry or adjudication may be essential for a valid approval of the same. A speaking order would in other words be required only in cases where an area of dispute or controversy is meant to be resolved by the authority or the list is approved in a modified form. The obligation to make a speaking order would not extend to cases where there is no disagreement as such between the assessee filing the list and the proper Officer. Seen in that light, the list in the present case c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n expressed by the petitioner appears to be that unless, the petitioner were to assail the order of approval of the list or the decision of the Respondent (sic) holding the items to be excisable it would not be entitled to claim refund should its appeal filed for an earlier period succeed before the CEGAT. This apprehension has been allayed by Mr. Haranahally's statement that if the petitioner were to succeed in the appeal it could claim refund subject to its fulilling the requirement of Section 11B of the Act. This position even otherwise stands to reason for once it is held that a particular item fabricated by the petitioner in any one of its workshops is not excisbale, it should be unnecessary to have the said adjudication or decision re ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
