1994 (11) TMI 258

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....67,683.83 filed by the appellants. 2. The appellants had, in the year 1984, manufactured and cleared two consignments of 3300 kgs and 3720 kgs after paying of requisite excise duty vide gate passes dated 7-11-1984 and 15-12-1984 but the said consignments were found sub-standard and hence were returned to their factory under delivery challan dt. 25-7-1985 and 26-7-1985, along with the original gate passes, and on receipt of the same, D-3 declarations contemplated vide Rule 173L of the Central Excise Rules, 1944, were filed, where it was specifically declared that the returned goods were to be reprocessed. It was also intimated to the jurisdictional Supdt. that reconditioning was required to be done by way of bulvarising and blending,....

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....s and the procedure of Rule 173L of the Rules was followed, and as such they were eligible to get the refund. He however, sanctioned Rs. 67,683.83 as against the claim for Rs. 67,732.18. Taking recourse to the provisions of Section 35E(2) of the CESA, 1944, the department, however, filed appeal before the Collector (Appeals) against the said order, and vide impugned order, the Collector (Appeals) allowed the appeal, holding that the appellant had failed to establish that the goods returned and goods cleared subsequently belonged to the same class so as to bring their refund claim within the purview of Rule 173L(3) of the Rules. 3. Mr. Prakash Shah, the Ld. advocate for the appellants has submitted that the order of the Collector (Ap....

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....items fall within same T.I., the approach of the Collector (Appeals) is not correct. 4. Mr. Krishnamurthy, the Ld. JDR, has however, supported the order and has pleaded that the major distinction, in the instant case, lies in the fact that what is returned is Dye intermediate whereas the goods subsequently cleared are Dye, and as such "the class" contemplated under Rule 173L(3) has changed, and merely because the same Tariff Entry covers both of them, no benefit could be available. He has also referred to the order of the Government in Re : The Britania Biscuits Co. Ltd. (supra) to plead that the Government has duly clarified as to what is intended by the "same class". He has pleaded that if a wider interpretation is given, the very....

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....t, therefore, remains to be considered, in the light of the facts which are not under dispute, is, whether the goods received and the goods subsequently cleared fall within the "same class" so as to attract the provisions of Rule 173L(3) of the Rules. 9. The terms "class" or "same class", as used in Rule 173L(3)(iii) has nowhere been defined in the Rules or the Act and the pronouncements referred to as also others, have held that one has to go to the dictionary meaning of the word for the purpose of proper appreciation of the provisions, and considering various dictionary meanings, it appears that a class is a very general term for a group which happens to possess the same attributes, and the Government of India, have, in Re : Brita....