1980 (9) TMI 97

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....e material time under Item 1D(1) of the CET as "aerated waters containing blended flavouring concentrates" or under Item 1D(2) of the CET as "aerated waters-all others". 2. Briefly recapitulated, the facts of the case are that the petitioners, on 18-8-1977, filed refund claim for Rs. 10,77,987.70 claimed to be the amount of central excise duty paid in excess during the period from 18-3-1976 to 16-6-1977 on account of the fact that the goods in question had paid duty at a higher rate under T.I. No. 1D(1) of the CET, whereas the goods in question were according to the petitioners, classifiable under T.I. No. 1D(2) of the CET. The petitioner's contention was that they had used only "synthetic essences" in the manufacture of their products a....

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.... to correct the inadvertence and/or misconstruction and made a claim for refund under Rule 11 of the Central Excise Rules, 1944, which was precisely meant to take care of such mistakes and, therefore, the mistaken declaration did not act as an estoppel for the purposes of rejection of their claim as held by the Assistant Collector and the Appellate Collector of Central Excise, Madras. 4.1 It was submitted that the fact that the petitioner's product had never been tested was not material to the case because in an identical case of M/s. Spencer & Co., Madras, where tests of samples revealed that the manufacturers were using only "synthetic essences", the departmental officers nonetheless had held the essences to be synonymous with "blended....

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....he Duke's case, notwithstanding the fact that they had themselves initially filed a classification list for their goods describing as containing "blended flavouring concentrates " The petitioner's case is on all fours with the case of M/s. Spencer & Co. Further' the petitioners have led documentary evidence by way of certificates from M/s. Parle (Exports) Pvt. Ltd., Bombay and M/s. Bisleri (India) Pvt. Ltd., Bombay who are their raw material suppliers apart from the technical opinion of Dr. A. Srinivasan (whose opinion was also relied upon by the Bombay High Court in the case of M/s. Duke & Co.) ruling out the use of blended flavouring concentrates. 5.2 Government further observe that the co-franchise holders and petitioner's competitors....