Ruma Pal, J. - (1.) The petitioners, inter alia, manufacture vacuum hoses. The petitioners had been clearing the hoses under the Tariff sub-heading 4009.92 of Chapter 40 of Schedule-II to the Central Excise Tariff Act of 1985. The Tariff sub-heading 4009.92 reads as follows :- "Designed to perform the function of conveying air, gas or liquid." Under this sub-heading 30% Duty was leviable.
(2.) According to the petitioners, the vacuum hoses, manufactured by them, are in fact, vacuum brake hoses and are supplied to the Railway Authorities for the purpose of functioning as vacuum brake or as parts thereof. In fact, the petitioner-Company is registered with the Railway Authorities, inter alia, for supply of vacuum brake hose pipes. According to the petitioners, there are limited suppliers of vacuum brake hose pipes to the Railways in the country. Of the 11 such suppliers, most are Small Scale Industry and are by virtue thereof exempted from payment of Excise Duty. The petitioner-Company is not a Small Scale Industry. One of the rivals of the petitioners in this trade, called M/s. Rubber Products Pvt. Ltd., is also not a Small Scale Industry. M/s. Rubber Products Pvt. Ltd. carries on business in the State of Maharashtra. M/s. Rubber Products Pvt. Ltd. had also been clearing its vacuum hoses under sub-heading 4009.92. It submitted a revised classification list for re-classification of the vacuum hose pipes under sub-heading 4009.99, of the schedule to the 1985 Act. Sub-heading 4009.99 is the residuary sub-heading. The rate of Duty is nil. The application for re-classification, made by M/s. Rubber Products Pvt. Ltd., was rejected by the Assistant Collector, Thane. An appeal was preferred by M/s. Rubbar Products Pvt. Ltd. before the Appellate Collector. After hearing the parties, the Appellate Collector came to the conclusion that a vacuum brake hose was properly classifiable under sub-heading 4009.99 and not under 4009.92. This decision of the Appellate Collector appears to have been delivered in 1988. On the basis of the decision of the Appellate Collector, M/s. Rubber Products Pvt. Ltd. applied for refund of the Duties paid by it at 30% under sub-heading 4009.92. The refund application was disallowed. M/s. Rubber Products Pvt. Ltd. filed a writ application before the Bombay High Court. The Bombay High Court allowed the writ application of M/s. Rubber Products Pvt. Ltd. by a decision. The Bombay High Court held that the order of the Appellate Collector was final and that the respondent-Authorities were bound to refund the amount paid by M/s. Rubber Products Pvt. Ltd. under sub-heading 4009.92. It appears from the judgment that the order of the Appellate Collector had been appealed from by the respondent-Authorities before the Tribunal; but the Tribunal dismissed the appeal preferred by the Excise Authorities on the ground that it was barred by Laws of Limitation.
(3.) Coming to know of the decision of the Appellate Collector from the reported judgment of the Bombay High Court, the petitioners filed a revised classification list before the Assistant Collector and prayed for re-classification of the vacuum hoses manufactured by them under sub-heading 4009.99. The decision of the Bombay High Court was referred to by the petitioners.;