GTC INDUSTRIES LTD. Vs. COMMISSIONER OF C. EX.

JUDGEMENT

(1.) THE appeal arises from Order -in -original No. V. Adj. (Ch. 24) 15 -22/2004/840, dated 28 -9 -2004 passed by the Commissioner of Central Excise, Mumbai -V Commissionerate. Vide the impugned order, the ld. Adjudicating authority ordered recovery of Rs. 58,71,708/ - along with interest thereon from the appellant M/s. GTC Industries Ltd. which was erroneously refunded to them by the jurisdictional Asst. Commissioner of Central Excise vide order -in -original No. 149/99, dated 15 -11 -1999, in pursuance to the decision of the Hon'ble Apex Court in Civil Appeal No. 12043 -12054 of 1995 decided on 6 -2 -2003/13 -3 -2003 (2003 (152) E.L.T. 241 (S.C.)). Aggrieved of the same, the appellant is before us. The facts relevant to the case are briefly as follows. The appellant, M/s. GTC Industries Ltd. (GTC in short) are manufacturers of cigarettes. They also manufacture printed shells and slides of paper board which are used in the packing of cigarettes both captively as also in their Baroda unit. The said shells and slides are also cleared to M/s. J & K Cigarettes Ltd. vide Finance Bill, 1982, a separate tariff entry was created for printed boxes and cartons under Tariff Item 17(4) of the Central Excise Tariff. The appellant filed a classification list vide Classification List No. 2/82 w.e.f. 28 -2 -1982 claiming the benefit of exemption under Notification No. 66/82 -C.E., dated 28 -2 -1982. The said C/L was approved by the jurisdictional Deputy Commissioner who classified the products (shells and slides) manufactured by the appellant under TI 17(4) and also denied the benefit under Notification No. 66/82. Aggrieved by the said decision, the appellant preferred an appeal before the Commissioner of Central Excise Appeals who vide OIA No. A -2217 -2219/B.I. -439 -440/BD/883/82, dated 24 -12 -1982 rejected the appeal. The said decision was challenged by the appellant before the Delhi High Court vide CWP No. 1563/1983. Vide judgment dated 10 -11 -1993, the Hon'ble High Court held that shells could not be classified under TI 17(4) and hence not liable to duty. The appeal filed by the department vide SLP No. 1737/93 was dismissed by the Apex Court.

(2.) THE ld. Counsel for the appellant made the following submissions: -