Customs, Excise and Gold Tribunal - Mumbai
Thermon Heat Tracers Ltd. vs Commr. Of Customs And C. Ex. on 13 December, 2002
Equivalent citations: 2003(161)ELT208(TRI-MUMBAI)
ORDER Gowri Shankar, Member (T)
1. This appeal is against the order of the Commissioner (Appeals) holding that the incidence of duty for which refund has been claimed and sanctioned was not shown not to have been passed on, and confirming the order of the Assistant Commissioner crediting the refund to the Consumer Welfare Fund.
2. On 1-6-2001, the Bench which heard the appeal passed orders holding that on the facts of the case that the appellant shall be entitled to refund [2001 (132) E.L.T. 455 (Tri.)]. However the department moved an application for rectification on the ground that the basis on which refund has been sanctioned, the classification of the heat tracing cables in heading 85.14 of the Central Excise Tariff Act confirmed, was itself under challenge. The question of classification had been pending with the Assistant Commissioner. It had been remanded by the Tribunal in its order passed on 6-1-2002 on appeals by the assessee and the department. The Tribunal, after considering this application and hearing the respondent, recalled its order.
3. The refund that has been sanctioned is of the duty that the assessee paid on heat tracing cables that it manufactured and cleared between July, 1993 and March, 1994. It arose consequent on the decision of the adjudicating authority that these cables were classifiable, as claimed by the assessee in heading 85.14 under the excise tariff. The assessee had earlier been paying duty at a higher rate as applicable to heading 85.16.
4. The departmental representative tells us that the order of the Deputy Collector classifying the goods in heading 85.14 (as a result of which refund arose) was appealed by the department. The Commissioner (Appeals) had classified the goods under heading 85.44. Both the assessee and the department appealed this order to the Tribunal. The assessee claiming the goods classifiable in Heading 85.14 and the department in Heading 85.44. The Tribunal remanded the matter. In subsequent orders, the goods have been classified in Heading 85.44 by the Commissioner (Appeals) (in relation to the same classification list). The representative of the appellant agrees that this is broadly the position and says that he has appealed this order of the Deputy Collector to the Commissioner (Appeals). In the light of this explanation now tendered, it will be clear that the eligibility to refund of the duty paid by the appellant is itself in dispute. Therefore, the question as to whether the incidence of duty has or has not been passed on is insignificant. It would arise only if and when it is finally decided that the refund is payable to the appellant.
5. Accordingly, the entire proceedings before us are at present of no significance.
6. The appeal is accordingly dismissed.