COLLECTOR OF CENTRAL EXCISE Vs. VALIA BROTHERS PVT LTD

JUDGEMENT

(1.) THIS Appeal has been preferred by the Collector of Central Excise, Thane Collectorate against the Order-in-Appeal bearing No. E- 1983/BII-396/83 (in File No. V-2(15A) 2130/80/42057) issued on 26-10-1983.

(2.) The issue relates to the admissibility of refund claim by the respondents herein, who are manufacturers of padding solution. The respondents had addressed a letter to the Department on 16-11-1971 stating that in their opinion, DMEU, DMPU, and GLYOXAL based padding solutions are not excisable and they will be paying excise duty on the products manufactured, namely DMEU, DMPU under protest. The respondents subsequently filed the refund claim on 19-9-1978 for Rs. 10,15,768.30 for duty paid on four products viz. DMEU (Prym. E), DMPU, BECKAMINE and Prema fresh (all padding solutions) under Item 15A Central Excise Tariff for the period from 1-6-1972 to 20-7-1977 on the ground that upto 28-2-1975 these goods were not excisable under 15A of Central Excise Tariff and thereafter they were dutiable only under Item 68 of Central Excise Tariff. For the purpose of limitation on refund claim they relied on their letter dated 16-11-1971, as a letter of protest and because of that they said the claim is not barred by limitation. The Assistant Collector, on considering the refund claim held that though the respondents have mentioned in their letter dated 16-11-1971 that padding solution was not excisable but they had mentioned only DMEU as a product on which they were paying duty under protest. Therefore, the Assistant Collector has held their letter of protest can be said to cover only duty paid on DMEU and not all the other products and on this basis he sanctioned their refund partly on the duty on DMEU for the period holding that this duty was paid under protest and disallowed the balance. The respondents went in appeal and the Collector (Appeals) in the impugned order held that their letter dated 16-11-1971 must be taken to cover all the products as padding solutions and allowed their appeal holding they were eligible for the whole refund. The present appeal is against the order of the Collector (Appeals).

(3.) SHRI D. D. Gwalani, the learned counsel for the respondents pointed out that they had included all the items in their letter of protest and they were protesting against the levy of duty on padding solutions as such. This position in law has come to be accepted by the department. Therefore, there was no reason to modify the order of the Collector (Appeals). He further relied upon the judgment of the Supreme Court in the case of India Cement reported in AIR 1989 SC 1496 India Cement v. Collector of Central Excise, wherein in similar circumstances the Supreme Court has held that the letter raising objection against levy should be considered as a letter of protest. He also referred to another case decided by the Tribunal reported in 1989 (29) ECR 49 to the same effect.