- (1.) NO orders on I.As. Nos. 7 and 8 in Civil Appeals Nos. 1359 and 1360 of 1980. Leave granted.
(2.) THE short question which arises in these appeals is whether the appellants M/s. Southern Asbestos Industries, M/s. Sree Balaji Industries and M/s. Saritha Industries are entitled to refund under S. 11-B of the Central Excise Act, 1944, consequent upon the judgment of this Court in Hyderabad Industries Ltd. Vs. Union of India in the quantum appeal wherein this Court held that extraction of asbestos was not "manufacture". Before the competent authority the case of the appellant(s) was that since amounts were deposited under protest, S. 11-B was not applicable and in that connection they placed reliance on the judgment in Mafatlal Industries Vs. Union of India. The claim was dismissed by the competent authority but allowed by the Commissioner (A), whose decision has been overruled by the Tribunal whose decision stood affirmed by the impugned judgment of the High Court. Hence, this civil appeal(s) is filed by the assessees. It may be noted that according to the Tribunal since the levy of duty was not challenged by the appellant(s) who claims to have taken over the operations from its predecessor, they were not entitled to claim refund.
(3.) THE difficulty has arisen in these cases because before the Tribunal, it was argued on behalf of the appellants that the appellants had taken over the mining operation from erstwhile corporations and therefore they were entitled to take advantage of the decision of the Supreme Court in Hyderabad Industries Ltd} On the basis of this contention the Tribunal came to the conclusion that since the appellants herein, being distinct and different entities from the erstwhile corporations had not challenged the levy on the ground of non-excisability, they were not entitled to claim refund on the basis of the decision of this Court rendered in appeal in Hyderabad Industries Ltd. This finding of the Tribunal has been affirmed by the High Court vide impugned judgment. When the special leave petitions were filed before this Court, however, in the synopsis the stand taken by the appellant(s) was that the appellants were subsidiaries of Andhra Asbestos Corporation.;