UMA LAMINATED PRODUCTS PVT LTD Vs. COLLECTOR OF CENTRAL EXCISE

JUDGEMENT

(1.) THIS is an appeal directed against the order dated 27-4-1987 passed by the Collector of Central Excise (Appeals), Madras, by which he had upheld the order dated 13-10-1986 of the Assistant Collector of Central Excise, Hyderabad III Division, rejecting the refund claim of the appellants herein for a sum of Rs. 18,53,715.82 being the amount of duty involved on the laminated packing containers manufactured and cleared by them.

(2.) The appellants herein filed the refund claim on 11-7-1986 on the ground inter alia that since the appellants had not contravened Rule 9 (1) of the Central Excise Rules, 1944 there could be no demand against them under Rule 9(2) thereof. The background of the demand is that on 13-11-1984 a Show Cause Notice was issued to the appellants asking them to show cause why the goods produced by them should not be classified under the erstwhile Central Excise Tariff Item 68 instead of under Tariff Item 17(4) as has been approved earlier. After considering their reply to the Show Cause Notice and hearing them in the matter, the Assistant Collector confirmed the classification under Item 68 by his order dated 21-5-1985 and held that the revised classification will be applicable from the date of issue of the Show Cause Notice viz. 13-11-1984. Against this order of the Assistant Collector on classification, an appeal was filed before the Collector (Appeals) which was rejected by that authority, and a further appeal was filed before the Tribunal, New Delhi, which is said to be pending. Meanwhile on 16-12-1985, the Assistant Collector wrote to the appellants indicating the clearances of their product for the period 13-11-1984 to 16-12-1985 and quantifying the duty payable by them in accordance with the revised classification, and in response to their reply contending that the demand was not payable by them, the Assistant Collector in his letter dated 3-1-1986 referred to the adjudication order dated 21-5-1985 deciding the classification issue and requiring the appellants to pay the amount of Rs. 18,85,275.12 under Section 11A of the Central Excises & Salt Act, 1944. The appellants thereafter complied with the demand in instalments between 16-1-1986 to 24-2-1986 as stated above. They subsequently filed a refund claim on 11-7-1986. This refund claim was rejected by the Assistant Collector on the ground that the classification of the goods as decided by the Assistant Collector has been upheld in appeal by the Collector (Appeals) and that the appellants had paid the duty correctly as per the approved classification, and that therefore, no question of refund would arise. This order of the Assistant Collector rejecting the refund claim was upheld by the Collector (Appeals) and the present appeal is against that order of the Collector (Appeals).

(3.) SHRI K.M. Vadivelu, the learned D.R. appearing for the Department, contended that the Show Cause Notice issued on 13-11-1984 clearly spelt out the grounds for demanding duty. The notice had asked the appellants to show cause as to why the classification of the goods should not be revised to Item 68 of the Central Excise Tariff, and it also asked them to show cause why duty thereon shall not be demanded, and further, as to why the future assessment thereafter should also be not under the revised classification. Therefore, when the classification itself was decided on the basis of the notice as above, there was no need in law for a further notice for demanding duty as such. The appellants also cannot get around duty paid as per approved classification by filing a refund claim.