NEPTUNE WIRES P LTD Vs. UNION OF INDIA

JUDGEMENT

(1.) This is a petition under Article 226 of the Constitution of India challenging the order dated 4th September, 1980 passed by the Assistant Collector of Central Excise, Bombay Division 'P', on an application made by the petitioner company for refund of excise duty which, according to it, was wrongly paid by it. The petitioner is a private limited company engaged in the manufacture of copper rods, flats, bus bars, rectangular rods, all having thickness about 10 mm, hereinafter they are referred to as "the said goods". On 1st of March 1975, a new item, being Tariff Item No. 68 was introduced for the purpose of central excise. Immediately thereafter, the Superintendent of Central Excise wrote a letter to the petitioner company that it should classify its product under Tariff Item No. 68 which suggestion, however, was not accepted by the petitioner.

(2.) On 20th of January 1976, rejecting the petitioner's contention that the said goods were classifiable under Item No. 26A, the Assistant Collector passed an order directing that the said goods were excisable under Tariff Item No. 68. This order was not appealed against. The petitioner paid duty as per the averments in the petitioner under protest, as directed by the Assistant Collector. It has been mentioned to me by Mr. Bhandare, appearing in support of the petition, that the petitioner, in fact, asked for an appealable order and the Assistant Collector obliged the petitioner by passing an order on 7th of April 1976. Against this order the petitioner did not prefer an appeal.

(3.) Subsequently, in the month of May 1978, the petitioner filed a fresh classification list, showing therein that the said goods were falling under Tariff Item No. 26A and were therefore, exempted under Notification No. 119/66 dated 16th of July 1966. This classification was pending for approval, when by an order dated 24th of November 1978 passed in Revision No. 1295 of 1978 filed by another party, Government of India held that the goods which were involved in the revision application and which were the same produced by the petitioner, were covered by Tariff Item No. 26A(i) of the Central Excise Tariff and not under Tariff Item No. 68. This view was naturally accepted by the authorities in Bombay and the Assistant Collector of Central Excise, Bombay Division, by his order dated 23rd of April 1979 followed the view taken by the Government of India.