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TMI Blog1991 (12) TMI 189X X X X Extracts X X X X X X X X Extracts X X X X ..... 0. Appeal No. E/1899/91-D arises out of an order granting a refund of Rs. 5,188.00. 3. The facts are as follows : The respondents, M/s. Modella Woollens Ltd. are engaged in the manufacture of wool tops falling under Tariff Item 43 of the Central Excise Tariff. A show cause notice dated 1-2-1980 was issued proposing to demand a duty of Rs. 2,67,651.39 for the period from 1st September, 1977 to 17th January, 1980 on the ground that they have used 77662.5 kgs. duty paid pure wool tops and manufactured 1,16,584.0 of blended wool tops falling under Tariff Item 43 and cleared the blended tops without payment of duty. The respondents, in their reply, stated that the original wool tops made of 100 per cent wool as also those blended from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Assistant Collector rejected the claim. On an appeal, the Collector, by a common order, allowed the claim for refund of duty. Hence, the Department's appeal before us. 5. The main contention of Smt. Sundaram for the Department is that the Collector allowed the appeals relying on the order of this Tribunal in British India Corporation case (supra) which is not applicable to the facts of the case. Shri Asthana appearing for the respondents, contended that the issue is squarely covered by the said order. 6. To consider whether the issue is covered by the order in British India Corporation case, it is necessary to examine the said order-in-appeal. 7. Briefly, the facts in British India Corporation case are as follows : The i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... blended wool top stage. In spite of said tariff advice, the appellants, namely, British India Corporation, continued to pay duty at the stage of pure wool tops only. The Board on 28-4-1981, reversed the order of Collector No. 12/80 and held that the duty is payable at the pure wool top stage. The said order was, again, reversed by the Central Government by its Order No. 430/82 of 1982, the result, by 20-7-1982, it was crystalised that the duty is payable only at the blended wool top stage and not at the pure wool stage. In spite of above, the British India Corporation went on paying duty at the wool top stage. Therefore, the impugned proceedings were initiated. The main question that was contended before the Tribunal was that the duty was p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t enforcing the demand prior to 3-12-1980. 9. In the instant case, the period invloved is 1-9-1977 to 17-1-1980 and during this period, the advice of the Finance Ministry and the Trade Notice No. 212/76 of Bangalore Collectorate was in force. In view of the Trade Notice and the advice of the Finance Ministry, the respondents were paying duty at the pure wool top stage. It is only on 3-12-1980, the Trade Notice changed the practice of payment of duty at blended wool top stage. Therefore, the observations made in Para 7 (iv) of the order of this Tribunal in British India Corporation, are squarely applicable and the demand should not be enforced and in our view the Collector is justified in setting aside the demand and granting the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... daram. 12. Smt. Sundaram next contended that since the respondents have paid duty in 1977, when they were called upon by the Deptt. to deposit the duty payable at the blended wool top stage, they are not entitled to the relief. It is true that the respondents paid the duty when called upon, however, immediately within the period of limitation they have filed the claim for refund of duty. Therefore, they were, throughout, maintaining that the duty was not payable at the blended wool top stage, but only at the pure wool top stage. Therefore, the fact that they have paid duty in 1977 does not in any way affect their right to claim the benefit of the order of this Tribunal in British India Corporation. 13. Shri Asthana contende ..... X X X X Extracts X X X X X X X X Extracts X X X X
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