C.T.A. Pillai, Member (T)

1. Appeal under Section 35B of the Central Excises and Salt Act, 1944 praying that in the circumstances stated therein, the Tribunal will be pleased to set aside the order of the Appellate Collector of Central Excise, Madras, dated 14-9-82 in No. 225/82(B) with consequential relief by way of refund of Rs. 8,05,422.87 claimed.

2. This appeal coming up for orders upon perusing the records and upon hearing the arguments of Shri S. Padmanabhan, Advocate for the appellant and upon hearing the arguments of Shri S.K. Choudhury, Senior Departmental Representative for the respondent, the Tribunal makes the following order :

3. The appeal is directed against the order of the Appellant Collector of Central Excise, Madras, referred to supra. The brief facts of the case are as follows :

4. On 30-6-80 the appellant filed a claim for refund of duty paid on flush doors during the period 21-7-73 to 31-5-80, indicating that duty had been paid under protest and that the Delhi High Court had held that flush doors are not excisable-the reference being to the judgment dated 17-3-80 of a Division Bench of the Delhi High Court in Civil Writ No. 938/79 in the case of "Wood Craft Products Ltd. v. The Superintendent (Technical), Customs and Central Excise and Ors., Dubringarj"- 1980 E.L.T. 684 (Del.). It was also indicated that as the duty under Item 16B of the Central Excise Tariff had been paid under protest, the claim did not attract any limitation under the Central Excises and Salt Act, 1944. A second claim on substantially the same grounds was filed on 23-6-81 for refund of duty paid from 1-6-80 to 31-5-81. Adverting to these two claims the Assistant Collector of Central Excise issued notice to the appellant as to why the claim should not be rejected, as he felt that as per Notification No. 41/73 , dated 1-3-73 read with Collector's Trade Notice No. 157/73, dated 30-7-73 flush doors are liable to duty under Item 16B; classification of flush doors in another case under Item 16B had been upheld both by the Appellate Collector, Madras and by the Government of India in revision; the judgment of the Delhi High Court was not relevant to the facts of the present case, and the claim was barred by limitation. In a detailed reply the appellant pointed out the difference between plywood and flush doors and indicated that though Government might have held that assessment of flush doors could be done under Item 16B of the Excise Tariff, as the matter had been settled by the High Court of Judicature, Delhi the refund becomes due; it was wrong to say that the judgment of the Delhi High Court was not relevant, duty having been paid under protest the question of time bar will not arise. In a communication No. V/16B/18/52/80-B.2 and V/16B/18/8/81-B.2, dated 12-8-81 the Assistant Collector of Central Excise and Customs, Karwar Division observed as follows :

"Considering all the evidence produced along with the replies to show cause notices during the hearing and subsequent to that, I agree that the Flush door is a board with inner core held in a frame and covered on sides with plywood is liable to be assessed under Tariff Item 68. Consequently duty to be refunded, keeping in view the limitation of time of the refund claim filed by the parties will have to be worked out in detail before completion of the refund claim. The party may submit a detailed work sheet through the Range Superintendent of Central Excise, Dandeli in the enclosed proforma."

Pursuant to this communication of the Asstt. Collector a formal claim in the prescribed proforma was filed in which the net amount of duty to be refunded, after indicating the amount actually paid and the amount if goods are assessed under Item 68, was filed. This net amount was finally refunded. The Company again filed a refund claim for the amount which was withheld by the Department in respect of the period 1-3-75 to 7-8-81 on the ground that flush doors are assessable to duty under Item 68 with eff