Judgment:
1. This appeal is directed against the order of the Collector of Central Excise (Appeals), Tiruchirapalli, dated 11-1-1991.
2. Shri Venugopalan, the learned counsel for the appellants, submitted that the issue involved in the present appeal is with reference to the appellants' entitlement to refund in a sum of Rs. 12,468 of duty for the period 1-3-1986 to 31-3-1986 paid on Calcined Magnesite known as Ramming Mass. It was submitted that the appellants filed classification list 22/86 on 17-3-1986 in respect of the goods in question classifying the same under Heading 2505.00 of the Central Excise Tariff, 1985 and the same was approved by the proper officer on 24-6-1986 making the approval effective from 28-2-1986. Thereafter a show cause notice was issued by the Asstt. Collector on 26-8-1986 seeking to revise the classification of the goods in question under Heading 3801.90 and calling upon the appellants to pay the differential duty of 3% resulting in the order of the original authority dated 26-3-1990 and signed on 12-4-1990 against which the appellants preferred an appeal before the learned lower appellate authority resulting in the present impugned order.
3. Shri Venugopalan raised several contentions and mainly argued for considerable length of time urging that in respect of the amount involved refund was actually granted for the same period and the Department was trying to reopen the concluded issue. While the Bench went into all the records and the earlier orders and the refund application it was found that the refund did not relate to the period in question at all and when this was brought to the notice of the learned counsel, he did not press the pleas which he urged before us.
4. The learned counsel, however, submitted that whatever may be the position the appellants would be liable to pay duty only at 12% ad valorem on the goods in question for the period in question by virtue of Central Excise Notification 213/86, dated 25-3-1986 and notwithstanding the fact that a specific ground on a question of law was taken in the appeal before the lower appellate authority, the lower appellate authority rejected the same without any consideration on the only ground that it was a new ground which had not been urged before the adjudicating authority and the learned counsel assailed this finding in the impugned order as not tenable in law.
5. Shri Subramaniam, the learned DR, submitted that inasmuch as the plea had been taken before the lower appellate authority urging a ground in regard to Notification 213/86 the Tribunal may remit the matter, if so considered necessary in the interest of justice.
6. We have considered the submissions made before us. We find from the records that a plea was taken before the learned Collector (Appeals) with reference to the applicability of Notification 213/86, dated 25-3-1986 and even though this plea was not raised before the adjudicating authority that would not debar the appellant from raising the same before the appellate authority. The appellate authority in dealing with this new plea has given the following finding in the impugned order: "The ground No. (iii) claiming that during the March, 1986 appellants were not entitled to clear the goods at 12% adv. only by virtue of Notification 213/86 dt. 25-3-1986, is a new ground which was not raised before the adjudication officers. Hence this was not allowed and, therefore, is not being discussed." Therefore, without expressing any opinion on the merits of the issue, we feel that in law a finding will have to be given after hearing the party on a question of law with reference to applicability of notification raised in the grounds of appeal and set aside the impugned order and remand the matter to the learned Collector (Appeals) for consideration of the issue in regard to the applicability of Notification No. 213/86, dated 25-3-1986 cited supra to the appellants' case after hearing the appellants and in accordance with law. Ordered accordingly.