Decided on July 15,1991

Neptune Polymers Appellant
Collector Of C. Ex. And Customs Respondents


R. Jayaraman, Member (T) - (1.) THIS is an appeal directed against the Order -in -Appeal bearing No. GSM -1123/89 -AHD, dated 15 -5 -1989 passed by the Collector of Central Excise (Appeals), Bombay, rejecting the appellants' appeal.
(2.) THE facts of the case are that the appellants filed a Classification List No. 1/86 -87 under sub -heading 5406.11 of Central Excise Tariff 1985 for the product Mono Filament Yarn of HDPE and also indicated the effective rate of duty at Rs. 3.52 per kg plus additional duty. The Assistant Collector approved the classification list with the modification of the Tariff Heading 5406.11 to 5406.90. However, the rate of duty and other particulars as claimed by the assessee were not changed. The said classification list was approved on 26 -7 -1986. In the meanwhile during the period, between filing of the classification list and its approval, the appellants filed a letter of protest, having come to know that the product is chargeable to nil rate of duty. This letter of protest is dated 6 -5 -1986. In this letter, the appellants have stated that the product is fully exempted from the Central Excise duty under Chapter 54 and it is an article of plastic falling under Chapter 39, but as per the department's opinion, excise duty on Mono Filament Yarn of HDPE and strips of High Density is liable and therefore, duty is paid under protest under Rule 233B of the Central Excise Rules. Subsequently they followed up the same by way of final refund claim. The claim for the period from 26 -6 -1986 to 10 -6 -1988 was made on 12 -9 -1988 and the appellants, before filing the refund claim, filed another classification list during the year 1987 claiming nil rate of duty, which, after adjudicating by the Assistant Collector, was approved. But the refund claim was rejected on the ground that Classification list No. 1/86 -87, which was approved on 26 -7 -1986, was not appealed against and hence no refund claim is admissible.
(3.) SHRI S.R. Tripathi, the Ld. Consultant on behalf of the appellants, pleaded that the Assistant Collector has totally ignored the letter of protest, which was filed before the approval of the Classification list No. 1/86 -87. The Assistant Collector ought to have passed an order disposing of the protest letter, which he has not done. The question of filing an appeal against the approval of the classification list, in view of the protest letter and payment of duty under protest for the subsequent period from 6 -5 -1986, did not arise. He therefore, pleaded that the orders of the authorities below are not legally sustainable and are required to be set aside. Shri Naik, the Ld. SDR, on the other hand, pleaded that when they received the classification list (as per their own indication of the rate of duty without any amendment) duly approved and if the appellants feel that it is not correct, they should have appealed against the same, since the approval of classification is also an order or decision, which could be appealed against. Having failed to do that, the protest letter cannot come to their rescue. Even the protest letter should be deemed to have been disposed of, on approval of the classification list on 26 -7 -1986. Hence, the appellants ought to have filed the appeal against the approval of the classification list No. 1/86 -87. The refund claim cannot be entertained, when the duty has been paid as per the approved classification list.;

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