Judgment:
1. Appellant absent and unrepresented. We have heard the departmental representative.
2. The appellant is a manufacturer of high density polyethylene tapes and strips. These tapes and strips were classified by the department under 5406.90 of the Tariff not accepting the appellant's claim for classification in heading 3926.90. The question of classification of these tapes and strips was later decided by the Tribunal, holding them to be classifiable under heading 3920.32.
3. The appellant thereupon claimed refund of the duty paid by it on the ground that it was collected without authority of law. Notice was issued to the appellant proposing in effect, to deny the claim. It proposed to deny the refund claim on the ground that the duty paid by the manufacturer was equal to the duty payable under heading 3920.32, decided by the Tribunal to be correct. It proposed to deny the claim of duty of Rs. 1.33 lakhs approx. paid under the Additional Duties of Excise (Textiles and Textile Articles Act, 1957 on the ground that it had not been shown that the incidence of duty had not been passed on as provided in Section 11B of the Act. Neither the Asst. Collector nor the Collector (Appeals) have dealt with either of these aspects. Both of them have gone on the basis that after the refund is granted, the product would be subject to nil rate of duty and modvat credit would not be available.
4. They were not required to consider any of these issues. All that they had to do was to deal with the contentions in the notice. Neither of these orders is therefore maintainable. We therefore allow the appeal and set aside the impugned order and remand the matter to the Asst. Commissioner for deciding the issue raised in the show cause notice. In deciding the claim, the Asst. Commissioner will keep in mind sub-section (2) of section 11B of the Act.