9911796707
TMI Blog2015 (10) TMI 1560X X X X Extracts X X X X X X X X Extracts X X X X ..... ht copper, intended for use in the manufacture of utensils or handicrafts falling under heading 74.02 or 74.03 from whole of Central Excise duty subject to the condition that the exemption shall not apply to a manufacturer who produces or manufactures copper from copper or copper concentrate. The ordinance factory in December 1996 had doubt regarding classification of the material being cleared by them to the appellants. They were of the opinion that the material being cleared by them is not unwrought copper and therefore would not be correctly classifiable under heading 74.03. The revenue clarified that they should immediately file a revised classification and also pay applicable Central Excise duty. The ordinance factory later on paid the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r scrap falling under heading 74.04. The Commissioner (Appeals) held that since the ordinance factory had not protested while paying the duty it cannot be said that the duty was paid under protest. He did not give any findings on the issue of classification. 3. Learned Counsel for the appellants argued that the exemption has been correctly availed by the ordnance factory as material cleared by them was classifiable under heading 74.03. He also argued that the ordinance factory may not have filed protest but the appellants have been protesting from the day the duty was recovered from them. They had tried arbitration, filed suit in the court and even contested in the High Court. The protest was clear and apparent. The appellant relied on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this the tribunal relied on the decision of Honble Supreme Court in case of Mafatlal Industries 1997 (89) E.L.T. 247 (S.C.). The para 107 of the said decision reads as under: 107.On the issue of the retrospective application of the amended provisions of the Excise Act, I wish to emphasise one practical difficulty that may arise. Reddy, J. has held that in respect of proceedings that have been finally culminated, there is no question of reopening proceedings, and retrospectively applying the amended Section 11B. However, in respect of decrees and orders that have become final but have not been executed, the non obstante clause, Section 11B(3), provides as follows : (3) Notwithstanding anything to the contrary contained in any judgment, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsidered as a protest against such liability. Moreover Section 14 of the Limitation Act, 1963: 14 Exclusion of time of proceeding bona fide in court without jurisdiction. (1) In computing the period of limitation for any suit the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the defendant shall be excluded, where the proceeding relates to the same matter in issue and is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it. (2) In computing the period of limitation for any application, the time during which the applicant has b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by them under protest. In view of above the refund claim cannot be considered as time-barred. 5.3 The 2nd issue that needs were decided is if the classification of the material cleared and consequential availability of the exemption notification. It is seen that the impugned order does not deal with the same. No findings have been given on the matter of classification in the impugned order and to that extent it is a non-speaking order. 6. In view of above the appeal is allowed on the issue of limitation. However on the issue of classification and availability of exemption the appeal is allowed by way of remand. The learned Commissioner (Appeals) is directed to hear the appellant on the classification issue and availability of exemption an ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
