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TMI Blog2018 (5) TMI 1343X X X X Extracts X X X X X X X X Extracts X X X X ..... der Notification No.56/02-CE dated 14.11.2002 which has been erroneously allowed to them. Therefore the same is recoverable under section 11A of the Central Excise Act, 1944. 2. The appellants are located at Jammu. They purchase Gibberillic acid and 6 Benzyl aminopurine from outside and mix them to produce plant growth regulator and pay excise duty on the same product. As they are situated in Jammu and Kashmir, they took benefit of Notification No. 56/2002-C.E., dated 14-11-2002 under which they get refund of excise duty paid through PLA. The Revenue's case is that the manufactured product continues to be Gibberillic acid and thus classification would be under 3808 93 40 under which the goods are exempted vide a notification, and therefore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y proceedings before a Central Excise Officer for a period of two years from the date of his retirement or resignation, as the case may be. 3. Further, the provisions of Section 129(6) of Customs Act, 1962 provide that on ceasing to hold office, the President, Vice- President or other Member shall not be entitled to appear, act or plead before the Appellate Tribunal. Section 129(6) of Customs Act reads as follows:- "129. Appellate Tribunal (6) On ceasing to hold office, the President, Vice-President or other Member shall not be entitled to appear, act or plead before the Appellate Tribunal". 4. In the past the question was raised as to whether restriction on appearance before CESTAT under provisions of section 129(6) was also applicabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... T only after retirement from service of the Tribunal and such conditions are not made applicable to a member discharged from service during the period of probation. Thus, on the basis of the aforesaid decisions the Tribunal, with regard to issues (i) and (ii), held that a member of the Tribunal discharged from service during probation period may not be debarred from practicing before it and provisions of Section 129(6) of the Act would be applicable only to such members who cease to hold office only after their confirmation. It was further held that the phrase 'on ceasing to hold office as Member' used in section 129 (6) of the Act would not include discharge of probationer and only a Member who is confirmed to hold office in such c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would not be applicable to a Member who demits the office while on probation....... 35. The conclusion arrived at by the Tribunal is a plausible view. Even if another view is possible, this Court in exercise of the jurisdiction under Article 226 of the Constitution of India would not like to interfere with the impugned order. The writ petitions are accordingly dismissed. There would be no order as to costs."........ 5. The Union of India appealed before the Supreme Court against the aforesaid order of Delhi High Court. The Honble apex court in its judgement dated 17-04-2017 dismissed the appeal as having been rendered infructuous and kept the question of law open. 6. In view of the foregoing facts, we hold that Shri P.S. Pruthi, ex- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant have not disputed the merit classification of the impugned goods in question but contested the issue of limitation. He also submitted that as periodical refunds sanctioned tome and the same have attained finality. Therefore, without challenging the same, the proceedings are not sustainable in the light of the decision of Hon'ble Supreme Court in the case of Flock India Pvt.Ltd.-2000(12) ELT 285 (SC) and Priya Blue Industries-2004 (172) ELT 145 (SC). He prayed that the impugned order be set aside. We find that the process and the product manufactured by the appellant were known to the department by way of periodical returns filed by the appellant wherein the process of manufacture was shown and the product was shown. Moreover, periodical ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the claim for refund had to be filed within a period of six months. It was still held, in Flock (India)'s case (supra), that in the absence of an Appeal having been filed no refund claim could be made. 8. The words "in pursuance of an Order of Assessment" only indicate the party/person who can make a claim for refund. In other words, they enable a person who has paid duty in pursuance of an Order of Assessment to claim refund. These words do not lead to the conclusion that without the Order of Assessment having been modified in Appeal or reviewed a claim for refund can be maintained." 7. In view of the observations, the impugned order is set aside and the appeal is allowed with consequential relief. (Dictated and pronounced in the cour ..... X X X X Extracts X X X X X X X X Extracts X X X X
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