Judgment:
1. This is a department's appeal filed w.r.t. the Order-in-Appeal No.69/90 (M)(D) dated 17-8-1990.
2. The respondents have sent written submissions in which they have mentioned inter alia that they have preferred an appeal against the same impugned order on the question of eligibility for refund before SRB which has also ordered it to be transferred to Delhi to be taken up with this appeal. The registry has not been able to locate and list the said appeal so far. In the circumstances, we have considered whether the present appeal could be considered by itself independently of the other matter or not; And in view of what follows, we consider that it is possible to do so.
3. Hence, we have heard the ld. DR who reiterated the department's viewpoint as contained in the grounds of appeal emphasising that the only issue in this appeal relates to classification of the respondent's product described as rubber solution. The department's contention is that it was classifiable under sub-heading 4005.00 whereas the authorities below had classified it under 3506.00.
4. It is however, observed that the impugned order of Collector (Appeals) dated 17-8-1990 had been passed by the ld. Collector w.r.t.
the AC's refund order dated 30-10-1989. It is also observed that the A.C. had passed this order taking into account the order of Collector of Central Excise (Appeals), Madras No. 151 /89 to 157/89, dated 21-7-1989 re-classifying the product under Chapter 3506.00 C.E.T. and holding that the duty was paid under protest. As such he had sanctioned the refund.
5. It is obvious that this order of refund was in the nature of an order of implementation of the aforesaid order passed by Collector (Appeals).
6. Therefore, the ld. Collector (Appeals) in his order dated 17-8-1990 rightly refers to this fact in the following words : "I have carefully considered the records and the rival contentions.
The Hon'ble CEGAT, New Delhi, by their decision in the case of M/s.
Elgi Polytex Ltd., Coimbatore v. Collector of Central Excise, Coimbatore, reported in 1988 (34) E.L.T. 404 (Tribunal) have held that 'Rubber solution' manufactured by the process of dissolving raw rubber in S.B.P. spirit would merit classification under sub-heading 3506.00, and the same was followed by my predecessor in Order-in-Appeal Nos. 151 to 157/89(M), dated 21-7-1989, in the cases of manufacture similar to the Respondents herein. Therefore, the classification ordered in the aforementioned decision will apply to this case also." 7. This can only be considered to mean that the Collr. (Appeals) has in the impugned order rightly taken note of the fact that the issue has already been settled by the order of his predecessor (which in turn was based on a Tribunal's order) and therefore, he has wisely refrained from passing any fresh order of his own and only made it clear that the said classification will apply to the present case also. In the circumstances, a question arises, whether the department could file an appeal against this order (dated 17-8-1990) of the ld. Collector (Appeals).
8. It is also observed from the documents enclosed by the respondents that in fact the department had earlier already moved the Tribunal against the Order-in-Appeal, Nos. 151-157/89, dated 21-7-1989 passed by C.C.E. (Appeals), Madras regarding the classification of the product in question and the Revenue's appeal has been dismissed by the Tribunal's Order No. 489/96. It is this order of the Collector (Appeals) which has been so confirmed by the Tribunal which was the basis of the A.C.'s order dated 30-10-1989 and which has been referred to in the impugned order of the Collector (Appeals).
9. In the circumstances, nothing survives for consideration at this stage insofar as the classification of the product is concerned. We may however, clarify that in the Memorandum of appeal, the department has in the narration of the brief facts of the case also referred to the issue relating to the due compliance with Rule 233B. It was in this respect that the ld. Collector (Appeals) had in the impugned order held against the respondents and that is why apparently they had also filed an appeal against the said order, which was evidently before SRB and ordered to be transferred to Delhi. Since however, the present appeal is specifically confined to the classification issue we are not making any observation w.r.t. the compliance with Rule 233B at this stage leaving the matter to be decided when the respondent's appeal comes up on board. Insofar as the present case w.r.t. the classification of the product is concerned, since it has already been decided and disposed of by the Tribunal by its aforesaid order, no further order is called for.
The petition is disposed of in the above terms. [For statistical purposes the appeal stands dismissed].