Customs, Excise and Gold Tribunal - Delhi
C.C.E. vs Sri Krishna Spinning And Weaving Mills ... on 11 December, 1997
Equivalent citations: 1998(99)ELT473(TRI-DEL)
ORDER G.A. Brahma Deva, Member (J)
1. Heard Shri R.S. Sangia, ld. DR for the Revenue. The respondents remained absent in spite of notice. In the Order-in-Appeal the Collector (Appeals), following the earlier Order No. 334/88-B, dated 30-11-1988 and for the reasons stated in the same order, has accepted the contention of the assessee and accordingly the order of the Assistant Collector was set aside. In the earlier Order No. 334/88, dated 30-11-1988, it was observed by him that the refund claim has been rejected on the ground that price list having been approved the same cannot be reviewed.
2. It was contended on behalf of the Revenue that since the assessee has not filed an appeal against the approved price list, he has no right to ask for review of the order by filing a refund claim. This view of the department is no longer good in view of the series of decisions of the Supreme Court including in the case of Elson Machines (P) Ltd. reported in 1988 (38) E.L.T. 571 (S.C.). Following this decision and the decision of the Bombay High Court in the case of Tata Oil Mills Ltd. reported at 1982 (10) E.L.T. 358, Tribunal has been consistently taking the view that refund claim is admissible although price list under which duty was paid not modified or revised. It is settled position now that the excise authorities are not stopped from taking a view different than in approved classification list and similarly assessee also can ask for re-assessment while filing a refund claim under Section 11B of the Act. In the instant case, it is not even the case of the department that refund claim was barred by time. Since the refund claim is in time, the authorities are supposed to look into the aspect of re-assessment and to pass an order accordingly. Since we do not find any infirmity in the impugned order passed by the Collector (Appeals), we uphold his view and in the result appeal filed by the department is hereby dismissed.