1. This appeal has been filed by the Collector of Central Excise, Bangalore against the order of the Collector (Appeals), referred to supra, by which the Collector (Appeals) has set aside the order C. No. V/28A/18/37/81, dated 27-9-1982 passed by the Assistant Collector of Central Excise, Bangalore I Division rejecting a claim dated 27-3-1981 for refund for Rs. 1,39,095.60 filed by M/s. Guest Keen Williams Ltd., the respondent herein. In the appeal it is contended that the earlier order No. V/28A/17/3/75-Vol.-II, dated 26-9-1980 passed by the then Assistant Collector of Central Excise, Bangalore I Division was neither a speaking order nor any points of law were discussed and as such did not merit consideration and it did not preclude the adjudicating authority to reopen the case at the time of refund and clarify the stand of the department with regard to the assessability of duty on packing charges.

2. The S.D.R. submitted that by these two so-called orders dated 23-2-1980 and 26-9-1980 the then Assistant Collector of Central Excise, Bangalore Division had not taken into account the provisions of amended Section 4 of the Act which had come into force from 10-10-1975 and had gone by a Trade Notice issued in April 1970 in terms of unamended section. In processing the claim of the respondent, the successor A.C. took note of the amended provisions of law and found that the refund is not maintainable in terms of law. The A.C. of Central Excise has to be satisfied before accepting a claim for refund in terms of Section 11B(2) of the Act. Such a satisfaction is not obviously possible in the light of the appellate order as in terms of the provisions of the Act and law. Therefore, he urged that the present order of the Assistant Collector dated 26-9-1980 is a proper order. He also submitted that the earlier letter No. V/28A/17/3/75 Vol. If, dated 26-9-1980 is not one of reasoning. It was, therefore, open to the second Assistant Collector to have examined the claim on merits. He also referred to the decision of the Delhi High Court in the case of Bawa Potteries v. Union of India-1981 E.L.T. 114 (Del.)-wherein the Court has held that in cases of assessment there is limited power of review.

3. On behalf of the respondent it was submitted that the question of assessment had been concluded by the order of the A.C. dated 26-9-1980; the merits of classification cannot, therefore, be reopened; the passing of a voucher for refund is a consequence to an earlier order of the A.C. It is not open to the second A.C. to review the order passed by the first A.C.

4. To appreciate the legal points involved in this case, it is useful to set out the facts relating to issue of more than one order in the present case as set out in the order of the Collector (Appeals) :

"Appellants manufacture 'Electrical Stampings and Laminations falling under T.I. No. 28A. These excisable goods are assessable on ad valorem basis and hence, appellants filed price lists wherein ex-factory prices and packing charges were shown separately. In this order-in-original C. No. V/ 28A/17/3/75, dated 17-2-1976, Assistant Collector held that the excisable goods in question are normally delivered only after packing and such packing is included in the price; and as such the packing charges are includible in the assessable value. When the matter was taken up in appeal, Appellate Collector, Central Excise, Madras, in his order No. 321/79 from file A. No. 68/76/C. No. V/28A/4/76, dated 28-2-1979 set aside the order inasmuch as it was submitted that normally the impugned excisable goods were delivered in naked condition (as seen from the 1975 figures, wherein cut of 6000 tonnes only about 2000 tonnes (33.3%) were despatched in packed condition). However, under this order Assistant Collector was permitted to decide the issue afresh, after examining the facts, Assistant Collector after reconsideration by his order C. No. V/28A/17/3/75 Vol. II, dated 23-2-1980 held that there were substantial