JUDGMENT - DEVADHAR J.P., J.:---The short point raised in this petition is whether the Collector of Central Excise (Appeals) was justified in entertaining the appeal filed by the Revenue against the refund of excise duty granted by the Assistant Collector of Excise to the petitioners without passing an appealable order? In other words, the issue is, whether an appeal was maintainable under the Central Excise Salt Act, 1944 against a communication issued by the Assistant Collector of Central Excise?

2. The facts having a bearing on the subject matter of the petition are as follows :-

The petitioners are engaged in the manufacture of needle roller cages (the said goods for short) which are component parts of bearings. In the year 1977, the petitioners filed classification list in respect of the said goods under Tariff Item 49 of the Excise Tariff which was accepted. Accordingly, the petitioners continued to pay the excise duty on the said goods under Tariff Item 49 of the Excise Tariff. On 16th June, 1980, the petitioners filed a revised classification list in respect of the said goods under Tariff Item 68 of the Excise Tariff and the said classification was accepted by the Excise  Authorities on 8th July, 1980. On 7th August, 1980 the petitioners filed a refund application seeking refund of the differential duty amounting to Rs. 3,84,190/- paid in respect of the clearance of the said goods during the period from 17-6-1977 to 16-6-1980. By an order dated 18th July, 1981 the refund claim filed by the petitioners was rejected on the ground that the Collector has reviewed the order of the Assistant Collector dated 8-7-1980 approving the classification under Tariff Item 68 of the Excise Tariff. Challenging the review order of the Collector, the petitioners filed an appeal before C.E.G.A.T. and the C.E.G.A.T. by its order dated 14-3-1986 held that the goods manufactured by the petitioners are classifiable under Tariff Item 68 and granted consequential reliefs to the petitioners.

3. On 10th June, 1986 the petitioners once again filed refund application seeking refund of the duty amount of Rs. 3,84,190/- for the same period from 17-6-1977 to 16-6-1980 for which the refund was already rejected. By an order dated 12-12-1986 the refund claim of the petitioners was allowed by the Assistant Collector by holding that in the light of the order of the Tribunal classifying the goods under Tariff Item 68 of the Excise Tariff the petitioners were entitled to refund and accordingly issued a cheque dated 12-12-1986 for Rs. 3,84,190.04 in settlement of the refund claim filed by the petitioners.

4. On 9-6-1987 notice under section 11-A of the Central Excise Act was issued by the Assistant Collector of Central Excise stating therein that Rs. 3,84,190/- was erroneously refunded and the petitioners were called upon to show cause as to why the said refunded amount should not be recovered from the petitioners. Thereafter, the Collector of Central Excise reviewed the refund order of the Assistant Collector dated 12-12-1986 and accordingly, an appeal came to be filed before the Collector of Central Excise (Appeals) under section 35-E(4) of the Central Excise Act challenging the said order dated 12-12-1986. The petitioners contended before the Collector (Appeals) that the appeal of the Revenue was not maintainable because, while granting refund no appealable order was passed and only against communication, no appeal could be filed. By an order dated 9-1-1989, the Collector of Central Excise (Appeals) set aside the refund order passed by the Assistant Collector of Central Excise dated 12-12-1986 inter alia on the ground that the consequential relief granted by the C.E.G.A.T. was not applicable for the period prior to the revised classification list filed by the petitioners and in the present case since the amount refunded pertained to the period prior to the revised classification filed by the petitioners, the same was not covered by the decision of the Trib

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