Customs, Excise and Gold Tribunal - Delhi
Dena Snuff (P) Ltd. vs Commissioner Of Central Excise on 29 September, 1999
Equivalent citations: 2000(115)ELT150(TRI-DEL)
ORDER G.R. Sharma, Member (T)
1. The applicant has filed this application stating that a mistake has crept in inasmuch as the appeal before the Hon'ble Bench was against impugned order No. 340/C.E./CHD/98, dated 19-7-1996 where the following issues get settled;
(1) Refund claim is not time barred (2) The product is classified under Chapter sub-heading 2404.60 on the basis of the judgment of CEGAT 1994 (71) E.L.T. 128 (3) The price remained the same even though there was change/increase in rates of duty during the period 25-8-1990 to 26-2-1994.
2. Shri J.S. Agarwal, ld. Counsel submits that this Tribunal by its Final Order No. A/1128/97-NB, dated 5-12-1997 observed :
"We note that the basic issue is whether the refund claim is maintainable or not. We have already seen that there was no order in respect of the appellant classifying their product under Chapter sub-heading No. 2404.60 and hence no refund arises. A refund claim does not arise unless there is a change in classification or rate of duty. In the case of the appellant no evidence has been placed on record to prove that in the appellant's case a change had taken place either in the classification of their product or rate of duty and hence the claim is not admissible".
Ld. Counsel submitted that a mistake apparent has crept in inasmuch as the appellants had in their Memo of Appeal in para 5 referred that in the case of the appellants, the issue went up to Commissioner of Central Excise (Appeals), Chandigarh who vide his Order-in-Appeal No. 339/C.E./CHG/96, dated 19-7-1996 set aside the Order-in-Original No. 546/C.E./AC/95, dated 19-12-1995 passed by the Asstt. Commissioner of Central Excise, Patiala and classified the product under sub-heading 2404.60. Ld. Counsel contested that in view of the above, the question before the Hon'ble Bench was not of classification but whether in the facts and circumstances of the case, the issues for decision were whether it was proper for the appellant to get the classification of their product decided first on the basis of the order of CEGAT or not to sustain the refund claim in order to examine whether the refund would lead to unjust enrichment.
3. We have perused the decision contained in Order-in-Appeal No. 340/C.E./CHD/96, dated 1997-1996 as also the findings of the Tribunal. We note that ld. Commissioner (Appeals) had in his impugned order observed that-
"I have gone through the refund claim. It is evident that claim is not based on the order of the CEGAT passed in the appellant's case. It was, therefore, proper for the appellant to get the classification of their product decided first on the basis of the order of CEGAT once the classification had been decided by the Asstt. Collector under CET sub-heading 2404.60 based on the order of CEGAT in the case of Lachhman Dass Bihari Lal the appellant could have filed the refund claim".
4. We note that ld. DR Shri D.K. Nayyar referred to para 99 of the judgment of the Apex Court in the case of Mafatlal Industries Ltd. wherein the Apex Court held that the refund claim does not arise in a case which is decided in respect of any other appellant that in such cases the claimant of the refund should first on the basis of the decision of the superior Court, should get the classification of the product settled and only when classification is approved by the competent authority/Court the refund claim arise. In para 99 the Apex Court in the case of Mafatlal Industries Ltd. held "99 (iv) it is not open to any person to make a refund claim on the basis of a decision of a Court or Tribunal rendered in the case of another person. A person whether a manufacturer or an importer must fight his own battle and must succeed or fail in such proceedings". We note that this is precisely the issue in the present case. Ld. Counsel for the appellant drew our attention to Order No. 339, dated 19-7-1996 whereunder ld. Commissior (Appeals) had held that the classification of the product under sub-heading 2404.60. We note that this decision of the ld. Commissioner (Appeals) is of subsequent date to the date of filing of the refund claim. As refund claim in the present case was received in the office of the Asstt. Commissioner on 6-6-1994 and hence the appellant could not say that the order dated 19-7-1996 gave rise to the refund claim. On careful examination of the Final order of the Tribunal as also the point made in the ROM, we note that there is no mistake apparent on the face of the record. ROM is, therefore, rejected.