D.M. Vasavada, Member (J)

1. As subject matter of both these appeals is the same, we have heard them together and we dispose them of together by this common order.

2. Facts, stated briefly, are - assessee, M/s. Bright Brothers Ltd., manufacture articles of plastic (hereinafter referred to the 'said goods'). Prior to 1-3-1982, the said goods were classified under T.I. 15A(2) and during the period from 1-3-1982 to 10-5-1982, the said goods continued to be classifiable under T.I. 15A(2), but due to some mistake, the Excise Department asked the assessee to classify the goods under T.1.68 from 1-3-1982 and to pay excise duty accordingly. As a consequence thereof, the assessee did file the classification list in respect of the said goods under T.I. 68 and paid basic excise duty @ 8% ad valorem applicable under T.1.68 during the period 1-3-1982 to 22-4-1982. From 22-4-1982, the said goods were totally exempt from duty by virtue of Notification No. 149/82 dated 22-4-1982 which exemption was continued even after the passing of the Finance Bill on 10-5-1982 vide Notification No. 182/82 dated 11-5-1982. From 10-5-1982, the said goods were classified under T.1.68. During the period from 1-3-1982 to 22-4-1982, the said goods attracted central excise duty under T.I.15A(2) and were liable to pay basic excise duty @ 8% ad valorem and special excise duty @ 5% of BED. As the assessee had already paid BED @ 8% ad valorem, though under T.I.68, the department raised demand only for special excise duty, @ 5% on the said goods which the assessee paid. Then, the assessee submitted a refund claim for the duty paid on the said goods for the period from 1-3-1982 to 22-4-1982 under T.I.68. Show cause notice was issued and on adjudicating the show cause notice, the Assistant Collector rejected the claim holding that the goods should have been cleared on payment of BED @ 8% ad valorem and special excise duty @ 5% of BED under T.I.15A(2), but the assessee continued to pay the duty @ 8% ad valorem under T.I.68 only and on demand, special excise duty was paid by them. As they had not paid BED @ 8% under T.I.15A(2) and as the rate of BED under T.I.68 was also 8% ad valorem, the assessee kept silent about payment of BED under T.I.15A(2). They were not entitled to refund and so it was rejected.

3. The assessee preferred appeal before the Collector (Appeals) and by Order dated 30-4-1985, the, ld. Collector (Appeals), Bombay, allowed the appeal holding that the duty paid under T.I.68 cannot be adjusted against claim of duty under T.I.15A(2), and the department, while issuing demand for special excise duty should have raised demand for basic excise duty under T.I.15A(2) also. Aggrieved by the said order, the department has preferred Appeal No. E/2815/85-C. The assessee preferred cross objection No. E/Cross/669/85-C praying that the impugned order be upheld with consequential relief to the assessee.

4. Some part of the goods, on which duty was so paid, was manufactured before 28-2-1982 and as such it was pre-budget stock when sold. By virtue of Notification No. 68/71 dated 29-5-1971, the said goods were exempt from payment of whole of duty upto 28-2-1982. So, as a matter of precaution, the assessee filed the refund claim for a sum of Rs. 84,861.72, being the amount of duty paid on such particular pre-budget stock contending it was not dutiable. The assessee filed this appeal because if the refund claim, which is a subject matter of Appeal No. E/2815/85-C, in any case, would be rejected, then the assessee could at least get benefit of this much amount; otherwise this amount also form part of that earlier refund claim. This claim was also rejected by the Assistant Collector and in appeal, the Collector (Appeals) held that as the amount of claim stood covered by the earlier decision of the Collector (Appeals) in his order relating to refund claim (whereby the refund was allowed) and as the same amount was the subject matter of the present appeal, the question of consi