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TMI Blog2003 (7) TMI 79X X X X Extracts X X X X X X X X Extracts X X X X ..... tion issued by the Assistant Collector of Central Excise ? 2.The facts having a bearing on the subject matter of the petition are as follows : The Petitioners are engaged in the manufacture of needle roller cages ('the said goods' for short) which are component parts of bearings. In the year 1977, the Petitioners filed classification list in respect of the said goods under Tariff Item 49 of the Excise Tariff which was accepted. Accordingly, the Petitioners continued to pay the excise duty on the said goods under Tariff Item 49 of the Excise Tariff. On 16th June, 1980, the Petitioners filed a revised classification list in respect of the said goods under Tariff Item 68 of the Excise Tariff and the said classification was accepted by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the Assistant collector of Central Excise stating therein that Rs. 3,84,190 was erroneously refunded and the Petitioners were called upon to show cause as to why the said refunded amount should not be recovered from the Petitioners. Thereafter, the Collector of Central Excise reviewed the refund order of the Assistant Collector dated 12-12-1986 and accordingly an appeal came to be filed before the Collector of Central Excise (Appeals) under Section 35E(4) of the Central Excise Act challenging the said order dated 12-12-1986. The Petitioners contended before the Collector (Appeals) that the appeal or the Revenue was not maintainable because, while granting refund no appealable order was passed and only against communication no appeal could ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llector of Central Excise (Appeals) under Section 35E of the Central Excise Act. Mr. Sankhlecha submitted that the order of the Collector of Central Excise (Appeals) is also bad in law as it does not deal with the objection of the Petitioners regarding the powers of the Collector of Central Excise to review a communication which is not an order. He also submitted that the refund of Rs. 3,84,190/- granted to the petitioners is proper because clearance of goods on payment of duty continued to be provisional till the final order of the CEGAT dated 14-3-1986. Accordingly, it was submitted that the impugned order passed by the Collector of Central Excise (Appeals) being without jurisdiction, is liable to be quashed and set aside. 6.We have car ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cise Tariff was pursuant to the approved classification list which was not touched by the Tribunal and, therefore, the Commissioner was justified in reviewing the order of the Assistant Collector and authorise, filing of an appeal. Once the duty is paid on approval of classification list, it can not be said that the duty paid is on provisional basis. 8. It is well established in law that the duty paid pursuant to the approved classification list is valid till a show cause notice is issued questioning the validity of the said classification and if ultimately, the goods are classified under some other Tariff Entry then the revised Tariff entry will be applicable from the date of issuing the show cause notice for revised classification. In t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the Collector of Central Excise (Appeals) was justified in setting aside the refund order passed by the Assistant Collector on 12-12-1986. Under the circumstances, we see no infirmity in the order of Collector of Central Excise (Appeals), which is impugned in the present petition. 10.Even assuming that the refund granted was pursuant to a communication, there is nothing in the statute which prevents the Revenue from challenging the communication, if the refund granted pursuant to such communication is found to be erroneous. This view of ours is supported by the decision of the Apex Court in the case of Commissioner of Customs Central Excise v. M.P. Steel Corporation reported in 2003 (154) E.L.T. 12 (S.C.). In that case the CEGAT ha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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