Judgment:
1. These are 2 appeals filed by M/s PVP Ltd. Being aggrieved with the common order in appeal passed by the Collector of Central Excise (Appeals), New Delhi. In one appeal the matter relates to the rejection of refund claim as time barred and in another rejection of the refund claim partly as time barred and particularly on merits. The matter relates to the duty liability in respect of the acid oil under the erstwhile Central Excise Tariff. Shri S.C.Kamra, ld. Advocate agrees that the Larger Bench decision in the case of Ahmed Oomerbhoy Vs.
Collector of Central Excise, Bombay [1998 (102) ELT 577 (T) is against the appellants on merits. as it has been held by the Tribunal's Larger Bench decision that the acid oil was classified under item No.68 and not under item No.12 of the erstwhile Central Excise Tariff Act. We find that as discussed in the order in original passed by the Assistant Collector, Central Excise that the duty was deposited during 2.10.84 to 26.3.85 whereas the claim was filed on 7.5.85 and it was held by the Assistant Collector that the claim prior to 8.11.84 was time barred. IT has been held that as a Classification list was approved under item No.68 and that approval was not challenged by the appellants, there was no ground for sanctining any refund. He has also held that the factory of the appellant was not covered under Notification No.115/75-CE dated 30.4.75 as applicable to the Oil Mills and Solvent Extraction Industry.
The ld. Advocate submits that the case was covered by Notification No.115/75-CE. Shri M.P. Singh. ld. SDR submits that both on merits and on limitation the order passed by the Collector Central Excise (Appeals) is correct. With regard to the filing of the refund claim without challenging the Classification he relied upon Supreme Court decision in the case of Collector, Central Excise, Kanpur Vs. Flock (India) Pvt. Ltd. [2000 (120) ELT 285 (SC). As regards the benefit of Notification No.115/75 CE dated 30.4.75 he refers to the Tribunals decision in the case of Collector of Central Excise, Vs. Bush Boake Allen (India) Ltd. India Ltd. [1991 (56) ELT 793 (Trib.).
2. After hearing both the sides and after going through the facts on record, we find that the Classification of the acid oil under item No.68 of the erstwhile Central Excise Tariff has been confirmed by the Tribunal's Larger Bench decision referred to above. We also take note of the fact that the appellants have been challenged the classification and without challenging the classification had filed the refund claim and this aspect of the matter is covered by the Supreme Court decision in the case of Collector of Central Excise, Kanpur Vs. Flock (India) Pvt. Ltd. [2000 (120) ELT 285 (SC). As regards the benefit of Notification No.115/75 CE, the Collector, Central Excise (Appeals) had observed that the appellants have taken contradictory grounds for the sake of claiming the refund and obviously the same was without any merits, He had observed as under:- "I also observe that the aforesaid contradictory position has arisen on account of the fact that the appellants never agitated against the approval of the classification list by the Assistant Collector.
If the classification approval even for subsequent period is not agitated, the question of any refund claim for the past period does not arise. Though the appellants' have referred to the case law on the point that for the past six months period they can always claim the refund, such plea would become admissible only if the classification list is either approved subsequently creating the basis for the refund for the past period, or the matter is under further agitation and the classification claimed by the assessee is later on upheld in appeal. This is not the case here and, therefore, the very basis of the refund claims is not there." After going through the facts on record we consider that there is no infirmity in the orders passed by the ld. Collector, Central Excise (Appeals). Relevant aspect of the case are covered by the authentitative pronouncement as above. We do not find any merit in both these appeals and the same are rejected. Ordered accordingly.