1997 (5) TMI 293

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....d. vide the said order, Collector (Appeals) has set aside the order passed by the Assistant Collector rejecting the respondent's refund claim of Rs. 5,61,580.21 and has remanded the matter to the original adjudicating authority for de novo decision of the respondent's refund claim in terms of the observations made by him in his impugned order. 2. Briefly stating the facts of the case are as under :- During the period relevant for the purpose of refund claim i.e. June, 1977 to March, 1980, there arose a dispute between the respondent and their jurisdictional Central Excise Officers as regards the correct classification of the rubberised cotton fabrics which the respondent was manufacturing and using captively for further manufactu....

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....raised by petitioner has no merits. The High Court recorded as under :- "After close scrutiny of the submissions made on behalf of the Writ Petitioners, this Court finds that the products manufactured by the petitioners cannot be termed as rubber goods. They cannot claim that the items manufactured by them are to be classified under Tariff Item No. 16A(2) and they are entitled to exemption accordingly. Looking to the various aspects of the case and the nature of goods manufactured by petitioners, this Court is convinced that the products manufactured by the petitioner should be classified under Item No. 19(I)(b) of the First Schedule to the Central Excises and Salt Act, 1944 and the dispute raised by the petitioners has no merit. This Co....

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....nst the above order, Collector of Central Excise (Appeals) set aside the order of the Assistant Collector and remanded the matter to the authorities below for de novo adjudication by observing as under :- "I find that Hon'ble High Court, Calcutta had rejected the refund claim and in the impugned show cause notice the appellant were asked to show cause why the said order of the High Court would not been given effect. But I agree with the contention of the appellant that cause of action arose in terms of the impugned Tariff Advice was not the matter before the Hon'ble Court, and in the wake of rejection by the said court refund claim cannot be rejected as such outright. I hold that it would be appropriate if show cause notice is issued to ....

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....iven due effect. 5. Shri N. Mookherjee, learned Advocate appearing for the respondents submitted that this Tariff Advice on the basis of which refund is being claimed was not in existence at the time of filing of the Writ Petition. The same was also not a subject matter before the High Court and as such the Central Excise authorities have the jurisdiction to look into the said Tariff Advice to decide their refund claim in accordance with the same. In the circumstances, he submitted that the order of the Collector (Appeals) is legal and proper and appeal may be rejected. 6. I have considered the submissions made by both sides and have gone through the orders passed by the authorities below as also through the order of the Hon....