K. Prakash Anand, Member (T)

1. This is a Revision Application filed by the appellants before the Government of India. On the setting up of this Tribunal, it has been transferred here and is now being treated as an appeal before us.

2. The matter pertains to refund claim of the appellant amounting to Rs. 1,09,563.72 which has been rejected by the department on the ground that it pertains to the period prior to the issue of Notification No. 204/79 dated 6.6.79 which exempted such goods and, therefore, the claim could not be entertained.

3. At the outset, when the matter was called, Dr. Gauri Shankar, the learned Senior Counsel for the appellants submitted that they have already filed a Writ in the Calcutta High Court under Article 226 of the Constitution, which has been admitted and an interim order issued. Accordingly, it would be inadvisable for other Courts to proceed with hearing in respect of the same matter. The learned Departmental Representative Shri K.C. Sachar on the other hand stated that the issue involved is already covered by a decision of this Tribunal and, therefore, there would be no justification to adjourn the matter.

4. The appellants have contended that their claim for exemption rests on the following grounds:-

(i) that their goods, namely, laminated jute products fulfil the Condition of the predominance of jute, required for classification as "Jute Manufactures" under Tariff item 22-A of the Central Excise Tariff;

(ii) that there is no doubt that these impugned goods are laminated jute products, and because of such lamination they would be assessable under item 22-A of the Central Excise Tariff;

(iii) that the goods were, in fact, as a long established practice, assessed under item 22-A of the Central Excise Tariff;

(iv) that the aforesaid practice continued despite the Calcutta High Court decision in the case of Dalhousie Jute Co.

(v) that a mere change in Tariff classification cannot over-ride a specific exemption Notification;

(vi) that Trade Notices had been issued by different Collectors including the West Bengal Collectorate to the effect that laminated jute bags fell under Item 22-A of the Central Excise Tariff.

5. The following case laws had been cited by the appellants in their favour :

1. MANU/CE/0254/1985 : 1986 (24) ELT 161 - Warden Co. Pvt. Ltd Bombay v. CCE Thane

2. MANU/WB/0099/1970 : AIR 1970 Cal. 497 - Dalhousie Jute Co. Ltd. v. Union of India

3. 1978 ELT 3 - 511 - Madura Coats ' Ltd. v. Asstt. Collector of Central Excise Tirunelveli and Ors..

6. Shri Gauri Shankar, however, seemed to feel that there was a conflict between the Tribunal's decision in the case of Sri Ram Jute Mills Ltd. MANU/CE/0218/1985 : 1986 (23) ELT 446 and Warden Co. Pvt. Ltd. (supra). He, therefore, felt that the issue may merit to be referred to a Larger Bench,

7. Shri K.C. Sachar, the learned Departmental Representative stated that he relied entirely on the decision of the Sri Ram Jute Mills case. Referring to the decision in Warden Company's case (supra), it was submitted from the department's side that the issue in that matter related to a decision as regards classification under either item 17 or Item 22-A of the Central Excise Tariff. The position here, it is submitted, is quite different. Further, it is stated that the appellants cannot rely on Trade Notices issued by other Collectorates which cannot come in the way of correct classification as determined by an officer of his quasi-judicial capacity. Shri Sachar therefore felt that there is no justification to refer the matter to a Larger Bench.

8. As regards the appellant's contention that the proceedings in this Tribunal should be adjourned in view of the fact that they have filed a Writ Petition before the High Court at Calcutta, we specifically quarried whether there was any direction from the Calcutta High Court that the proceedings in the Tribunal should be stayed until orders have been passed on the Writ Petition. The appellants have conceded that they have no