The appellant classified its product under sub heading 2404.60 of the Central Excise Act and paid duty on that basis till 27 7 90 when, according to the appellant, the Inspector Central Excise verbally declined to clear the appellants product unless the duty at a higher rate under tariff heading sub heading 2404.50 was paid.
The classification list was approved on the basis that the appellants products were classifiable under sub heading 2404.50 in 1994, In the same year, on 18 2 94 the Central Excise and Gold Control Appellate Tribunal CEGAT decided in a similar case 1994 71 E.L.T. 728 Tribunal .
There is some dispute as to the date on which such a verbal direction was given by the Inspector but it is number in dispute that the appellant has been paying the duty on the basis that the products were classifiable under Tariff Heading 2404.50 from 25th August, 1990.
That was done as recently as on 28 8 2003.
The appellants appeal to the Tribunal was disposed of by the order which is number impugned before us.
As far as the departmental authorities are companycerned, they took the view that the appellant had been unable to establish that the higher rate of duty had number been passed on to its customers and therefore was number entitled to refund.
The application for refund by the appellant was therefore premature.
On the basis of this decision of the Tribunal, the appellant filed an application for refund of the duty which had been paid by it under protest on the basis of the classification of its product under sub heading 2404.50.
The payments were made under protest.
Ultimately, this Court has on 28th August, 1990, in the assessees own case decided that the assessee was right all along and that the duty was in fact leviable on the basis that the appellants products were classifiable under tariff subheading 2404.60 and number 2404.50 which had been paid by it under protest.
Lachman Das Bihari Lal that the products were classifiable under sub heading 2404.60.
