TMI Blog1988 (10) TMI 243X X X X Extracts X X X X X X X X Extracts X X X X ..... appellants herein for a sum of Rs. 18,53,715.82 being the amount of duty involved on the laminated packing containers manufactured and cleared by them. 2. The appellants herein filed the refund claim on 11-7-1986 on the ground inter alia that since the appellants had not contravened Rule 9(1) of the Central Excise Rules, 1944 there could be no demand against them under Rule 9(2) thereof. The background of the demand is that on 13-11-1984 a Show Cause Notice was issued to the appellants asking them to show cause why the goods produced by them should not be classified under the erstwhile Central Excise Tariff Item 68 instead of under Tariff Item 17(4) as has been approved earlier. After considering their reply to the Show Cause Notice and h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ectly as per the approved classification, and that therefore, no question of refund would arise. This order of the Assistant Collector rejecting the refund claim was upheld by the Collector (Appeals) and the present appeal is against that order of the Collector (Appeals). 3. Shri S.K. Srivastava, the learned Consultant, appearing for the appellants contended that in this case the duty has been demanded in terms of Rule 9(2) read with Section 11A. Since there was no charge of clandestine removal he urged that there could be no ground for invoking the provisions of Rule 9(2). Further, in the order of the Assistant Collector dated 21-5-1985 deciding the issue of classification, there was no demand for duty at all. The learned Consultant cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for demanding duty. The notice had asked the appellants to show cause as to why the classification of the goods should not be revised to Item 68 of the Central Excise Tariff, and it also asked them to show cause why duty thereon shall not be demanded, and further, as to why the future assessment thereafter should also be not under the revised classification. Therefore, when the classification itself was decided on the basis of the notice as above, there was no need in law for a further notice for demanding duty as such. The appellants also cannot get around duty paid as per approved classification by filing a refund claim. 5. We have given careful consideration to the submissions made by the learned Consultant and the learned D.R. The mai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... effect from the date of the Show Cause Notice, and hence the contention that a separate notice for demanding duty should have been issued is unacceptable. 6. The Supreme Court decision in the case of Madhumilan Syntex (Pvt.) Ltd. relied upon by the appellants does not advance the appellants contention. In that case, the Supreme Court found that a demand for duty had been made without issuing Show Cause Notice for the modification of the classification list, whereas in this case the Assistant Collector has clearly issued a detailed show cause notice setting out the grounds for revising the classification, as also the liability to duty, and thereafter had ordered its revision, and the demand for duty followed as a consequence of such an ad ..... X X X X Extracts X X X X X X X X Extracts X X X X
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