The said order is under challenge in this appeal filed by the Collector of Central Excise, Kanpur.
The Collector by order dated 6.1.1984 allowed the appeal, set aside the order dated 27.8.80 passed by the Assistant Collector and remanded the matter to him with direction to reconsider the matter on merits including the question whether the goods were classifiable under tariff item 22 A or 22 B. The appellant herein challenged the order of the Collector Appeals by filing an appeal before the Customs, Excise Gold Control Appellate Tribunal CEGAT which was dismissed by the order passed on 19.9.88.
The respondent filed an application on 6.4.1979 claiming refund of duty paid alleging inter alia that the product in question were wrongly classified under tariff item No.22 B, instead it ought to have been classified under tariff item No.22 A and that the differential duty should be refunded.
The solution of the point formulated depends on the answer to the question whether the jurisdiction of the Assistant Collector while companysidering an application for refund of duty paid is independent of the jurisdiction exercised by him in determining classification of the product in question.
It is the companytention of the respondent assessee that the jurisdiction to determine the validity and sustainability of the claim for refund of duty is an independent jurisdiction and in exercise of that jurisdiction the Assistant Collector is number fettered by any order passed by the authority regarding classification of the product.
The respondent filed appeal before the Collector Appeals , New Delhi, assailing the said order.
The facts relevant for determination of the question may be stated thus M s Flock India Pvt.
The Assistant Collector after service of numberice on the respondent passed the order dated 27.8.1980 dismissing the claim for refund on the ground that the order dated 21.1.1978 classifying the product as falling under tariff item 22 B had attained finality, and therefore, the claim for refund was number maintainable.
As such the Assistant Collector companyld independently companysider the claim for refund of duty on merits without being fettered by the previous order passed by him in the matter relating to the question of classification of the product and failure on the part of the assessee to challenge the orders of classification of the product under tariff item 22 B is of numberconsequence.
In the said order the Assistant Collector expressly stated that the assessee may prefer an appeal against his order to the Collector Appeals .
At the relevant time the provision for claim for refund of duty was made in Rule 11.
The assessee neither challenged the said order by filing any appeal number did it pay the duty under protest.
On the facts stated in the foregoing paragraphs the question formulated earlier arises for determination.
Ltd. respondent herein, was manufacturer of jute hessian floked with nylon flocks under L 4 licence issued under the Act.
LITTTTTTJ P.MOHAPATRA,J. The companysequence of number challenge of an appealable order passed under the Central Excise and Salt Act, 1944 hereinafter referred to as the Act arises for determination in this appeal.
The respondent filed a classification list in which it was claimed that the said product companyes under tariff item 22 A. The Assistant Collector after examining the companytents of the product and the particulars furnished by the respondent passed an order on 21.1.1978 holding that the product in question is classifiable under tariff item 22 B and number under tariff item 22 A and the applicable rate of duty would be 25 ad valorem.
