1998 (5) TMI 186

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....The respondent's refund claim of cess paid on tea waste was rejected by the Assistant Collector on the ground that the cess was correctly paid by the Respondent on the tea waste inasmuch as there was no exemption Notification issued separately under the Tea Act, 1953 exempting payment of cess on the tea waste cleared by the respondent under the provisions of Rule 191B of the Central Excise Rules, 1944. The Respondent's contention before the Assistant Collector that since there is no excise duty on the undernatured tea waste and as such no cess should also be levied on the same was rejected by the Assistant Collector by observing that in the absence of any separate exemption Notification in respect of cess, the same would be leviable. He fur....

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.... was no exemption notification in respect of cess leviable on tea waste, the refund of cess paid by the respondent was not called for. He also relied on the Board's Circular No. 67/88 dated 9-1-1989 in support of his submissions that tea waste is chargeable to cess even when the same was cleared without payment of Central Excise duty. 4. Countering the arugments, ld. Advocate, Shri K.K. Banerjee submitted that when there is a definition of tea under the Tea Act, 1953, the same has to be taken into consideration for deciding the leviability of cess on the tea waste in question. Reference to Heading No. 9.02 of the Central Excise Tariff Act is not appropriate inasmuch the same is only for the purposes of levy of Central Excise duty. H....

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....rlier Order-in-Appeal No. 28.30/SH 90, dated 20-7-1990. This office is not aware about any order of superior forum having reversed or set aside the said order of Collector (Appeal) and therefore the present case still holds the field. There is also no allegation in the Assistant Collector's order that the claim is barred by limitation. I hold the same view in this case also and accordingly allow the appeal by way of remand to the Assistant Collector with direction for verifying that the incidence of case has not been passed on to the consumer in the light of the amended provision of Section 11B of Central Excise Act, 1944." 6. We fully agree with the reasoning of the Collector (Appeals) that the definition of tea as given in Section....