ORDER
Shri Tirath S. Thakur, J.
1. In this petition for a writ of mandamus the petitioner seeks a direction against the Respondent to pass an order of adjudication pursuant to the classification list dated 1.1.1989 filed by it in the prescribed form. The controversy arises in the following backdrop :-
1.1. The Petitioner is a Statutory Body constituted under the Electricity Supply Act, 1948 and engaged in generation, transmission and distribution of electricity within the State of Karnataka. It has established Workshops among other places at Mandya and Bangalore in which it fabricates certain items such as 2 pin cross arms, 3 pin cross arms, 4 pin cross arms, fish plates, PCC Pole clamps, RCC Pole clamps, DP sets, Earth guard stirrups, etc., used exclusively in the electricity transmission and distribution network established by the Board. A classification list effective from 1.1.1989 was filed by the petitioner before the Respondent-Assistant Commissioner Collector (sic) of Central Excise, Mysore. The list carried the following significant remark.
'This list is filed subject to CEGATS decision in our appeal filed against the order of the Central Excise, Bangalore.' According to the petitioner the remark extracted above, was intended to convey that the items mentioned in the list did not involve any manufacturing process and were therefore not excisable. It was also intended to convey that the dispute relating to the excisability of the items be kept alive.
2. By his communication dated 31st of January, 1989 the Respondent approved the classification list without recording any reason whatsoever for his decision and without the issue of any show cause notice to the petitioner. On receipt of the said communication, the petitioner requested the Respondent to pass a speaking order to enable them to file an appeal against the same insofar as it would hold the items to be excisable. This request was turned down by the Respondent, by his letter dated 30th of November, 1989 ANNEXURE-'D' to the writ petition. He stuck to his stand in his communication dated 22nd of December, 1989 reliance by the petitioner upon a decision of this Court in W. P. No. 3438/89, notwithstanding. Aggrieved the petitioner has filed the present writ petition, seeking a mandamus as already indicated earlier.
3. Learned Counsel for the petitioner submitted on the authority of the decision mentioned above, that once a list was filed before the Respondent he was bound in terms of Rule 173-B of Central Excise Rules, 1944 to pass a speaking order after an enquiry into the matter. The obligation to pass such an order argued the Counsel, arose because of the petitioner's clear stand taken in the list filed by it, as also in a similar list filed earlier that the goods fabricated in the workshops were not excisable as no manufacturing activity was involved in such fabrication. Inasmuch as the Respondent overlooked the requirements of Rule 173-B and declined to pass a speaking order, contended the Counsel, he committed an error which was palpable on the face of record. He further contended that the approval of the list, without the disclosure of the reasons, for such approval prevented the petitioner from filing an appeal against the adjudication and claiming refund of the amount of duty paid on the said items. A mandamus was according to the learned Counsel pre-eminently justified in the facts and circumstances of the case.
4. Mr. Ashok Haranahalli, learned Counsel appearing for the Respondents on the other hand contended, that the petitioner had filed a list which the Respondent was entitled to accept on the terms stipulated therein. He urged that there was no necessity of passing a detailed or a speaking order, as contended by the other side, having regard to the fact that the list had been accepted without finding fault with the remarks recorded in the same by the petitioner. He urged that if the petitioner was to succeed in the appeal filed before involving the same items, it can claim refund of the duty paid on the basis of the said decision without filing any separate appeal against the order of the respondent, accepting the list provided conditions stipulated under Section 11B for grant of and Rule 233B of the Central Excise Rules, for grant of such refund were satisfied. In case however, the petitioner failed to fulfil the conditions prescribed by the said provisions, it would not be entitled to refund even if the the petitioner were to to prefer an Appeal against any order that the Respondents may have made on the list in question.
5. Rule 173-B(2) of the Central Excise Rules, 1944, provides as under :-
'Rule 173-B(2) :- The proper officer shall after such inquiry as he deems fit, approve the list, with such modifications as are considered necessary return one copy of the approved list to the assessee who shall, unless otherwise directed by the proper officer, determine the duty payable on the goods intended to be removed in accordance with such list.'
6. A plain reading of the above would show that in cases where a list is submitted for approval, the proper officer is required to approve the same with or without modifications upon such enquiry as he may consider fit in the circumstances to conduct. The necessity to hold an enquiry may however arise only in case the proper officer takes a view contrary to the one, suggested by the Assessee who files the list. In cases where the proper officer does not find any fault with the list or the terms subject to which it is filed no further enquiry or adjudication may be essential for a valid approval of the same. A speaking order would in other words be required only in cases where an area of dispute or controversy is meant to be resolved by the authority or the list is approved in a modified form. The obligation to make a speaking order would not extend to cases where there is no disagreement as such between the assessee filing the list and the proper officer. Seen in that light, the list in the present case clearly mentioned that the same was being filed subject to the order that the CEGAT may pass in the appeal preferred by the petitioner against the order of Collector of Central Excise, Bangalore. It is not in dispute that the said Appeal pertained to similar items fabricated in the Bangalore workshop of the petitioner which had been held to be excisable by the Collector. By incorporating in the list the remarks extracted earlier all that was meant to convey was that the submission of the list was not unconditional and that the excisability of the items would depend upon where the CEGAT holds the same to be excisable in the appeal pending before it. The Assistant Collector while approving the list with the said remark, was not in these circumstances necessarily required to pass what is known as a speaking order. The submission and acceptance of the list, subject to the qualification referred to earlier was accepted and approved by the Assistant Collector. It follows that the Assistant Collector had also agreed while approving the list, that the excisability of the items in question, would depend upon the ultimate decision that the CEGAT may deliver in the appeal pending before it. In the circumstances therefore there was no element of adjudication involved in the approval of the list by the Assistant Collector so that the non-passing of a detailed order on the subject could be deemed to be an infraction of Rule 173-B (supra).
7. That apart, the apprehension expressed by the petitioner appears to be that unless, the petitioner were to assail the order of approval of the list or the decision of the Respondent, holding the items to be excisable it would not be entitled to claim refund should its appeal filed for an earlier period succeed before the CEGAT. This apprehension has been allayed by Mr. Haranahalli's statement that if the petitioner were to succeed in the appeal it could claim refund subject to its fulfilling the requirement of Section 11B of the Act. This position even otherwise stands to reason for once it is held that a particular item fabricated by the petitioner in any one of its workshops is not excisable, it should be unnecessary to have the said adjudication or decision repeated in respect of the subsequent period. Subject to the petitioner fulfilling the requirements prescribed by Section 11B and Rule 73-B, it should be possible for the petitioner to claim refund of the excise duty paid on any such items solely on the strength of the decision delivered by either the Collector or the CEGAT as the case may be for any previous period.
8. In the totality of the above circumstances therefore I see no reason to issue the mandamus prayed for. The writ petition is disposed of with the observation that in case the petitioner succeeds in the appeal, filed by it before CEGAT and referred to in the remark made by it, in List I of 1989 it shall be entitled to the consequential benefit by way of refund of the duty paid for the period following 1.1.1989 provided it otherwise fulfils the requirements essential for any such refund under Section 11B and Rule 233B of the Central Excises and Salt Act, 1944, and the Rules framed thereunder.
9. No costs.