1990 (4) TMI 146

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....hey were using synthetic essences and therefore entitled to claim exemption of 10% in excise duty. 4. They were not using blended flavouring concentrates. 5. .They had filed classification lists in respect of their product such as Sosyo, Genovita, etc. declaring therein the relevant notifications having a bearing on the rates of duty, etc. 6. The relevant period was 18-3-1972 to 31-4-1974. 7. In the matter of M/s. Duke and Sons, the Hon'ble High Court of Bombay had held that essences cannot be termed as blended flavouring concentrates. 8. In view of this judgment the appellant was liable to pay excise duty only at the rate of 10% and not at the rate of 20% mentioned in the classification list. As such the appellants were enti....

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....uring essence blended from essential oils and chemicals and not concentrates. 17. In respect of a similar product the Bombay High Court has already decided the matter and therefore the departmental authorities should have acted accordingly. 18. They had produced the certificates issued by eminent authorities like Dr. P.J. Dubash, Reader in Food Chemistry, Department of Chemical Technology, Matunga Road, Bombay. But the officers had not cared to go through them and had not attached any importance to them. 19 In response to certain question from the bench, the learned SDR required some time to seek instructions and clarifications which was allowed and thereafter he submitted a written reply and reiterated the same during hearing. ....

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....s not contested as for instance in the cases reported in 1983 E.L.T. 1853 (CEGAT), 1987 (29) E.L.T. 933 and 1987 (30) E.L.T. 538 (Tribunal). Further it has been held in the case of 1987 (32) E.L.T. 489 (MP) that a notice under Section HA was not required before modification thereof. 23. The learned counsel in reply stated that first and foremost the classification list which was filed itself had been approved only provisionally in as much as the Superintendent had approved the classification only "until further orders" as seen from the memorandum dated 17-3-1972. It has already been held by the Tribunal in a number of cases that when orders arc passed granting approval "until further orders" it means that they could be subsequently revis....

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.... filed against the classification order. Protest launched simultaneously with payment of duty was tantamount to claiming the amount. 29. It has also been held in the case of Alfa Electrical Products reported in 1987 (30) E.L.T. (Tribunal), that refund claim cannot be turned down merely because the approval of price-list or assessment of RT 12 has not been challenged by the assessee. 30. It was also held in the case of Stewards Lloyds reported in 1985 (22) E.L.T. 522 that non-filing of appeal against the approved classification list does not act as a bar to claims of refund. 31. It was also his contention that in respect of the very product Soyso, Hon'ble Bombay High Court has passed an order in Dukes case holding that it contained ....

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....the Collector (Appeals) that the merits could not be examined at that stage, was therefore not correct. They have observed inter alia that no sample could be drawn or tested at that stage, but no such test (second test) was necessary or called for at this stage as the sample had already been tested and the test report was available with the department. 35. Further once the sample had been drawn and tested it was necessary on the part of the department to supply to the appellants a copy of the test report. The department has admitted that it did not supply it to the appellant at any stage. 36.We also take note of the fact that even till this date, the department has not produced the copy of the test report. The matter is already more t....