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2013 (1) TMI 102 - CESTAT CHENNAIManufacture of core spun threads out of nylon / cotton and polyester / cotton yarns - classification under heading 54.02 OR 56.06 - assessee claimed refund of pre-depositpaid by them towards excise duty for core spun yarn manufactured and cleared during the period 01-03-94 to 28-02-95 - demand challenged invoking period of limitation - Held that:- While the assessee wanted the duty to be quantified only for six months prior to 14.6.95 (date of the show-cause notice), the Revenue asked for duty for the entire period from 1.3.1994 covered by Order-in-Original No. 55/93 dated 30.11.93. No classification issue was anywhere in the picture. Obviously, this Tribunal was required to decide only the limitation issue and, following the Supreme Court's judgment in Cotspun case [1999 (9) TMI 87 - SUPREME COURT OF INDIA], it held that no amount of duty for any period prior to the date of the show-cause notice (14.6.95) was payable by the assessee vide Final Order Nos. 281 and 282/2000 dated 23.2.2000. The sequence of events would thus show that the assessee acquiesced in the classification of the goods under Heading 54.02 and chose to stick to the plea of limitation all throughout in order to get the quantum of demand reduced to the extent possible. In such circumstances, the submission of the assessee that the classification of the goods under Heading 56.06 as held in Order-in-Original No. 55/93 dated 30.11.93 attained finality with the passage of Order-in-Appeal No. 73/2003 dated 30.7.2001 cannot be accepted, and their plea that they were not liable to pay any amount of duty in terms of Heading 54.02 and hence entitled to refund of the duty already paid is also unacceptable. Four questions of law arising out of Final Order Nos. 281 & 282/2000 dated 23.2.2000 have been referred by this Tribunal to the Hon'ble High Court for its opinion and this reference under Section 35H(4) of the Central Excise Act is pending before the Hon ble High Court vide RCP Nos. 27 & 28/2001. In this scenario, it has to be held that the Tribunal's Final Order Nos. 281 & 282/2000 dated 23.2.2000 has not attained finality and that the reference proceedings are to be considered as proceedings in continuation of the Tribunal s proceedings. Therefore, the refund claim filed by the respondent is premature also
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