TMI Blog2000 (6) TMI 510X X X X Extracts X X X X X X X X Extracts X X X X ..... r the purposes of present appeals, the appellants had claimed the classification of block board under Heading 4410.90 whereas the Revenue was of the view that the correct classification of the product is under Heading 4408. 3. In appeal No. 127/96, the period involved is 1-3-86 to 15-5-89. The dispute relating to the said period ultimately culminated into an order passed by the Tribunal being Order No. 427-430/89-D dated 18-10-89 vide which the appellants contention that block boards were correctly classifiable under Heading 4410.90 was upheld. Vide another order dated 30-4-90 passed in the appellants case the Tribunal held to the same effect. Thereafter refund applications were filed by the appellants on 22-11-89 and 26-11-89 claiming ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from this the show cause notice issued on 22-6-1995 in Appea1 No. 128/96 demanded duty short paid aggregating to Rs. 39,346.58 for the period in question. 6. The said two show cause notices resulted in passing of orders by the Asstt. Commissioner vide which, apart from confirming demand of duty short levied during the period, he also confirmed the quantum of refund of duty already paid to the appellants, as detailed above by taking the same as erroneous refunds. Appeal against the above order of the Asstt. Commissioner failed before the Commissioner (Appea1s). Hence the appeals before the Tribunal. 7. Arguing on the first period involved in Appeal No. 128/96 and on Appeal No. 127/96 in which cases refund of duties already sanctioned to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fund to be erroneous it was open to them to issue the show cause notice within six months period. The Tribunal has observed that even if the assessments for the relevant period were provisional the same stood finalised when the refund was granted. It was further observed in the case of National Plywood that Section 11A is the only section for recovery of erroneous refund and it requires notice to be issued within six months from the relevant date and the relevant date is the date of refund granted to the assessees and not the date of pronouncement of judgment by the Hon ble Supreme Court. He submits that the said decision of the Tribunal has since been confirmed by the Hon ble Supreme Court, when an appeal filed thereagainst by the Revenue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ibunal. 8. Shri P.K. Dutta. ld. Advocate along with Shri B. Mookherjee, ld. Advocate appeared on behalf of the Revenue. It is fairly agreed by Shri Dutta that National Plywood Industries decision reported in 2000 (125) E.L.T. 986 (Tribunal) = (1998 (27) RLT 763 covers the facts and circumstances of the instant case and the legal position involved therein. 9. After hearing both the sides and after giving our careful consideration to the detailed facts involved in the present case we find that the classification of block boards has already been settled at rest against the appellants by the Supreme Court in the case of Woodcraft Products Ltd. Ors. - 1995 (77) E.L.T. 23 (S.C.). The question required to be decided in the present appeal is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2) does not automatically result in recovery of refund which has to be followed by a show cause notice under Section 11A which should be issued six months from the date of actual refund. He submits that the said circular was binding upon the Revenue as laid down by the Hon ble Supreme Court in a number of judgments and as such the Revenue should have issued the show cause notice within a period of six months from the relevant date. In view of the fact that we have already allowed the appellants on the said issue by following the ratio of the earlier decision of the Tribunal in the case of National Plywood matters, the said circular is only an additional factor in favour of the appellants. 11. As regards the confirmation of demand of duty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 's decision in the case of Sri Chakra Tyres Ltd. v. CCE, Madras - 1999 (32) R.L.T. 1 (CEGAT-Larger Bench), be allowed. The Larger Bench of the Tribunal had held that the excise duty held payable subsequently was to be abated from total sale price for purpose of determination of the assessable value, the quantum of duty demand payable. The Tribunal had relied upon the Supreme Court decision in the case of Pravara Pulp Paper Mills v. CCE - 1997 (23) R.L.T. 890 (SC), and had referred to the Tribunal's decision in the case of Express Rubber Products v. CCE - 1998 (24) R.L.T. 482 (T). After observing as above, the benefit of modvat credit duty deduction was allowed. 12. Accordingly, following the ratio of the same we hold that the demand f ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
