COMMISSIONER OF C. EX. Vs. HINDUSTAN PHARMACEUTICALS LTD.

JUDGEMENT

(1.) Heard both sides.

(2.) The ld. Counsel places reliance on Tribunal's judgment reported in 1991 (53) E.L.T. 402 (Tri.) in the Collector of Central Excise v. Metazinc (India) Ltd. In terms of the said judgment the reprocessed goods even if cleared without actual payment of duty, will entitle the manufacturer to claim the refund of duty paid on the defective goods at the point of their initial clearance. The ld. DR. however, places reliance on judgment of the Kolkata Bench of the Tribunal reported in 2001 (130) E.L.T. 620 (Tri. - Kolkata) in the case of Commissioner of Central Excise, Calcutta -IV v. Fort William Co. Ltd. In the said judgment, the Tribunal has held that, where on account of exemption notification, no duty is paid on the goods after reprocessing/ then the refund amount shall be zero.

(3.) In other words, though the amount to be refunded is the amount of duty paid at the point of initial clearance of the defective goods, the amount has to be recaliberated with reference to the duty actually paid at the point of effecting clearance of reprocessed goods. I am, therefore, of the view that, the view taken by the Kolkata Bench of the Tribunal in the case of Fort William Co. (supra) is the correct interpretation of law which needs to be applied in the present case. However, on account of a conflicting view taken by the Mumbai Bench in the case of CCE v. Metazinc India reported in 1991 (53) E,L.T. 402 (T), the matter is placed before the President for resolving the conflict by obtaining the view of the Larger Bench. The Registry is accordingly directed to place this matter before the Honourable President for seeking orders.