RAJESH BHALLA, J. - (1.) THE petitioner is a partnership firm, having an industry of re -rollers, manufacturing stainless steel product known as 'Patta'. The product manufactured by the petitioner was initially classified as 'sheet' or 'strips', falling under Sub -item (ii) of the Tariff Item No. 26AA of the Tariff Schedule, as it was then existing, under the Central Excises and Salt Act, 1944 (hereinafter referred to as 'the Act of 1944'). The petitioner claimed that the product manufactured by it properly fall to be classified under Sub -item No. (ia) of the erstwhile Tariff Item No. 26AA. The petitioner based his claim on a decision given in the case of M/s. CD. Industries, by the Appellate Tribunal on 1 -6 -1984 and in the case of M/s. Ae Vee Iron and Steel Works Private Limited, Bombay, dated 29 -5 -1985. The Assessing Authority, namely, the Assistant Collector, Central Excise, Jodhpur, rejected the assessee -petitioner's claim. The petitioner filed an appeal before the Collector (Appeals). The appeal filed by the petitioner was accepted by the Collector (Appeals) on 22 -1 -1986, alongwith other 14 appeals of different assessees. As a result of the appellate order, passed by the Collector (Appeals), on the appeal filed by the petitioner, the petitioner became entitled to refund of duty paid by him 'under protest' as a result of wrong classification by the Assistant Collector, Central Excise.
(2.) THE petitioner applied for the refund. The Assistant Collector, Central Excise allowed the refund in the cases of 8 assessees, whose appeals were simultaneously disposed off by a common order by the Collector (Appeals); however, the Assistant Collector rejected the claim of following 7 assessees to refund, in persuance of the order passed by the Collector (Appeals) by order dated 20 -10 -1986 (Ex. 3) : - 1. M/s. Sancheti Steel, Jodhpur 2. M/s. Chopra Chemicals, Jodhpur 3. M/s. Swastik Metals, Jodhpur 4. M/s. Mehta Metals, Jodhpur 5. M/s. Adarsh Metals Corpn., Jodhpur 6. M/s. Sancheti Synthetics Pvt. Ltd., Jodhpur 7. M/s. Salawas Metals, Jodhpur. Aggrieved with the aforesaid order, the petitioner preferred an appeal before the Collector (Appeals), who allowed the appeal vide order Ex. 4 dated 27th September, 1988 and while setting aside the order dated 20th October, 1986, directed the Assistant Collector of Central Excise, Jodhpur to grant relief to concerned assessees as a result of appellate order Ex. 1.
(3.) THOUGH the Excise Department has preferred an appeal before the Customs, Excise and Gold (Control) Appellate Tribunal and applied for staying the order passed by the Collector (Appeals), no stay was granted, yet, no refund was made by the Department of the excise duty illegally recovered from the petitioner without authority of law. In view of aforesaid facts, which are undisputed, the petitioner has filed the present writ petition seeking a mandamus against the respondents, directing them to refund the amount of excise duty illegally recovered from the petitioner, and, which was due to the petitioner as a result of appellate order passed in his own case. 4A. During the course of hearing, it was brought to notice of the Court that appeal of Deptt. before CEGAT was also dismissed on 31 -8 -1989. A copy of orders of CEGAT dated 31 -8 -1989 alongwith orders of its rectification dated 25 -10 -1989 have also been filed. ;