TATA INTERNATIONAL LTD. Vs. COMMISSIONER OF CENTRAL EXCISE

JUDGEMENT

(1.) THESE appeals at the instance of the assessee arise out of a common order 18 -3 -2002 passed by the Commissioner (Appeals), Central Excise, Bhopal vide Order -in -Appeal Nos. 273 -74 -CE/BPL/2002.

(2.) THE appellants are having a tanning plant at Dewas where they manufactured finished leather, leather garments and leather footwear and parts thereof. The appellants were selling products at a higher price from the retail outlet than the price at which the goods were cleared at factory gate. It filed a price list in Part I under Rule 173C of the Central Excise Rules showing the price at the factory gate sale as the price under Section 4(1)(a) of the Central Excise Act, The Assistant Collector refused to approve the price list and directed the appellants to pay the differential amount of duty between the wholesale price and retail selling price. It is alleged that since nothing was given in writing to the appellants till the duty demanded was deposited, the appellant had to pay duty according to the approved price list under protest. Thereafter, the appellants submitted two refund claims on 14 -1 -92 for Rs. 18,644/ - and Rs. 8,427/ -. These applications were rejected by the Assistant Commissioner vide separate orders dated 28 -9 -92 mainly on the ground that since the appellants had not filed appeal against the approval of price lists, refund claims were not maintainable. Aggrieved by these orders, the appellant filed two appeals before the Collector (Appeals), Central Excise, Indore. These two appeals were disposed of by the appellate authority under his orders dated 19 -8 -93. The appellate authority did not agree with the Assistant Collector. According to him, going by the decisions of the Tribunal, High Court and Supreme Court there is no estoppel against law and the appellants could file a refund claim under Section 11B within the stipulated time limit even if the price list or classification list approved earlier was not challenged, just as the Department was free to issue notice under Section 11A of the Act for short levied duties regardless of the approved classification list or price list. Reliance was placed on the decision of the Tribunal in Collector of Central Excise, Pune v. Weikfield Products Co. (India) Pvt. Ltd. - 1987 (28) E.L.T. 483 and that of the Supreme Court in Elson Machines Pvt. Ltd. v. CCE - 1988 (38) E.L.T. 571.

(3.) THE appellate authority, therefore, took the view that the order passed by the Assistant Collector rejecting the refund claim has to be set aside. Reference was also made to the fact that the duty was paid under protest contrary to the finding of the Assistant Collector. For these reasons the appellate authority set aside the order of the Assistant Collector and remanded the matter back for de novo consideration in accordance with law. On remand the Assistant Collector heard the matter again and rejected the claim by order dated 14 -8 -95. The Assistant Collector again took the view that refund claim was not maintainable since the appellants had not challenged the approval of price list.