- (1.) The appellant classified its product under Sub-Heading 2404.60 of the Central Excise Act and paid duty on that basis till 27.7.1990 when, according to the appellant, the Inspector, Central Excise verbally declined to clear the appellant's product unless the duty at a higher rate under Tariff Sub-Heading 2404.50 was paid. There is some dispute as to the date on which such a verbal direction was given by the Inspector but it is not in dispute that the appellant has been paying the duty on the basis that the products were classifiable under Tariff Sub-Heading 2404.50 from 25.8.1990. The payments were made under protest.
(2.) The classification list was approved on the basis that the appellant's products were classifiable under Sub-Heading 2404.50 in 1994. In the same year, on 18.2.1994 the Customs, Excise and Gold (Control) Appellate Tribunal (CEGAT) decided in a similar case (Lachman Das Bihari Lal) that the products were classifiable under Sub-Heading 2404.60. On the basis of this decision of the Tribunal, the appellant filed an application for refund of the duty which had been paid by it under protest on the basis of the classification of its product under Sub-Heading 2404.50.
(3.) As far as the departmental authorities are concerned, they took the view that the appellant had been unable to establish that the higher rate of duty had not been passed on to its customers and therefore was not entitled to refund. The appellant's appeal to the Tribunal was disposed of by the order which is now impugned before us. The Tribunal did not go into the facts of the case but rejected the appellant's appeal on the preliminary ground that the application for refund was not maintainable. The reasoning given by the Tribunal was that this Court in the decision Mafatlal Industries Ltd. V/s. Union of India, had held that the assessee could not rely upon the decision in another assessee's case for the purposes of applying for refund. It would have to obtain a final order in its own proceedings. It was, therefore, held that since the issue regarding the final approval of the classification list was open in that the further appeals from the decision of the departmental authorities were pending, the application for refund could not be entertained. Ultimately, this Court has on 28.8.2003, in the assessee's own case decided that the assessee was right all along and that the duty was in fact leviable on the basis that the appellant's products were classifiable under Tariff Sub- Heading 2404.60 and not 2404.50 which had been paid by it under protest.;