Judgment:
1. This is an appeal filed by M/s. Sheetal Engg. Works being aggrieved with the Order-in-Appeal dated 7-7-1987 passed by the Collector of Central Excise (Appeals) Bombay. In his order the Collector of Central Excise (Appeals) Bombay had held in para 4 as under :- "4. I have carefully considered the submissions made by the appellants in their appeal petition and those made by their Consultant at the time of personal hearing. I have also gone through the order of the Assistant Collector, appealed against. I find that the Collector of Central Excise (Appeals), Bombay's Order-in-Appeal No. M-398/AHD-136/86 ([File] No. V-2(29A) 225/84) relates to payment of refund of duty either in cash or through R.G. 23. The issue before him (Collector of Central Excise (Appeals), Bombay) was not in respect of the fact that the benefit of Notification No. 252/83-C.E. dated 1-10-1983 was not available in this case and they had paid duty correctly under Notification No. 65/83 dated 1-3-1983.
The Assistant Collector has decided the issue on a new point. So the Assistant Collector has not disobeyed the order of the Collector (Appeals) [who] was decided the appeal on a different ground. In the circumstances, the Assistant Collector's order appealed against is correct. The appeal is therefore rejected." 2. The matter was posted for hearing on 11-10-1996. No one is present for the appellants. The notice for today's hearing had been sent at their given address on 24-9-1996. There is no response. There is no request for adjournment. This is an old matter and period involved is from 1-10-1983 to 14-10-1983 and the amount involved in the proceeding is only Rs. 3059.40/-. As the matter is very old, we are proceeding to deal with the matter on merits after hearing Shri M. Jayaraman, JDR who is present for the respondent/Revenue.
3. We find that the matter had been decided by the Assistant Collector, Central Excise, Ahemdabad on the ground that the concessional rate of duty of 25% ad valorem was not applicable to bottle coolers under Notification No. 252/83-C.E., dated 1-10-1983. There is no dispute that the goods involved in these proceedings are bottle coolers. Under Notification No. 252/83-C.E., dated 1-10-1983 domestic refrigerators of a capacity not exceeding 165 ltrs. were exempted from somuch of the duty as was in excess of 25% ad valorem. The bottle coolers could not be considered as domestic refrigerators. 'Domestic refrigerator' in common parlance will not cover bottle coolers. The Assistant Collector in his findings had observed as under :- "I have gone through the reply to the show cause notice filed by the party and record of Personal hearing. In this case the refund claim was filed by the party due to change in rates of duty as per Notification No. 252/83, dated 1-10-1983 and said claim was rejected since duty was not paid in P.L.A. At the initial stage while rejecting claim vide Order-in-Original No. 11/1984, dated 19-1-1984 it was not examined that concessional rate of duty of 25% ad valorem was not applicable to them in respect of bottle coolers manufactured by the party and that on re-examining. I do not agree with the party's contention that refund is to be granted in terms of Order-in-Appeal without going into the merits of the case. In view of CEGAT's Order No. 526/85-D, dated 20-12-1985 in case of Aruna Mills v. CCE, Ahmedabad, it was held by the Tribunal that period and amount of consequential refund have to be left to be determined by the Assistant Collector according to law. In this case according to law refund is inadmissible in view of the fact that Notification.
No. 252/83, dated 1-10-1983 was not applicable in their case and that they had correctly paid the duty under Notification No. 65/83, dated 1-3-1983 as discussed above. In view of my findings, I pass the following order." 4. After going through the relevant Notification we consider that the view taken by the Assistant Collector was correct and does not call for any interference.
5. As the Learned Collector of Central Excise (Appeals) has observed the matter had been decided by the Assistant Collector on the basis of interpretation of Notification No. 252/83-C.E. and it was a legal point. We find no force in the argument that the earlier orders of the appellate authority had not been complied with. The earlier orders did not deal with this aspect of the matter.
6. Taking all the relevant considerations into account we find no merit in this appeal and the same is rejected.