1. The facts of this case, in brief, are that the appellants manufactured metallised yarn. These are narrow width strands slit from metal-coated polyester film. They are used as imitation zari. The short point that falls for decision before us is the classification of metallised yarn under the Central Excise Tariff during the period from 28-7-69 to 3-2-72. The Department assessed the goods under item 18 as synthetic yarn. The appellants maintained that the goods correctly fell under item 15A(2) as an article of plastic and on that basis they applied for refund of the duty of Rs. 1,24,822/- on 27-2-72. The appellants claim that they had paid this duty under item 18 under protest. The lower authorities upheld the classification under item 18 and rejected the refund claim of the appellants. The appellants then filed a revision application before the Central Government which, on transfer to this Tribunal, has been taken up as the subject appeal.
2. During the hearing before us, the appellants rested their case on the Division Bench judgment dated 28-4-71 of the Gujarat High Court in Special Civil Application No. 780 of 1970 in which the said High Court ruled out item 18 on the ground that metallised yarn was not manufactured out of man-made fibres and held that the goods fell under item 15A(2). This judgment was followed by the Gujarat High Court in two subsequent cases reported at 1978 E.L.T. 64 and 1979 E.L.T. 146.
The appellants stated that there was no contrary judgment of any other High Court or of the Supreme Court, that though the Department had filed SLPs before the Supreme Court and the same were pending, there was no stay order by the Supreme Court and, on the contrary, the Supreme Court had actually directed payment of refund to the assessees involved in those SLPs.
3. The Department's representative stated that though there was no contrary judgment, the Bench need not feel bound by the Gujarat High Court judgment, firstly, because the Department had appealed against it to the Supreme Court [A.I.R. (39) 1952 Cal. 24-Satyanarayan Prasad v.Diana Engineering Company'] and secondly, because this Bench was not situated in the State of Gujarat [1983 E.L.T. 1342 (SC)-East India Commercial Co. Ltd. v. Collector of Customs, Calcutta]. He added that this Bench had not followed Kerala High Court judgment in the case of Messrs The Metal Saws Products v. Collector of Central Excise, Ahmedabad, reported at 1985 E.C.R. 437 (CEGAT) though there was no contrary judgment of any other High Court on the point at issue in that case. On merits, he argued that the Gujarat High Court had gone wrong in their finding because the definition in item 18 of the Tariff was an inclusive one and was not confined to yarn made out of man-made fibres.
Without prejudice to his main argument on classification, he stated that though the appellants had claimed to have paid the duties under protest, there was no record of such protest and both the lower authorities were silent on the question of protest. He maintained that their claim was partly time-barred under rule 11 read with rule 173-J of the Central Excise Rules, 1944, as then in force, under which the time-limit for filing refund claims was one year.
4. We have carefully considered the matter. We observe that Special Benches of this Tribunal have been set up with all-India jurisdiction to decide appeals on matters involving disputes on rate of duty or valuation for the purpose of assessment. The object of this scheme is self-evident. It is to achieve uniformity of assessment of customs and excise duties in the country. Keeping this object in view, this Bench has consistently followed the principle that where there is a High Court judgment on a specific issue and there is no contrary judgment of any other High Court or of the Supreme Court, the Bench would respectfully follow the High Court judgment on that issue, leaving it open to the parties to avail of their further legal remedies if they so desired. The case of Messrs. The Metal Saws was not an exception. The Kerala High Court judgment cited in that case related to interpretation of rule 11 -the date from which the limitation should run under that rule. In the case before us, Messrs Metal Saws had urged that the rule itself was not applicable to the facts of their case. We observe that this was a new point which had not been raised before the Kerala High Court and not dealt with in their judgment. It was in these circumstances that we dealt with the new point according to our best judgment. We have already made this position clear in paragraph 6 of our order in the case of Messrs Metal Saws. The analogy of that case is, therefore, not available to the Department to plead that this Bench need not be bound by a High Court judgment even in the absence of a contrary judgment of any other High Court. What the Department wants us to do is to analyse the Gujarat High Court judgment aforesaid and to hold that the High Court went wrong in their finding. We decline to do so. In keeping with our consistent approach, we respectfully follow the Gujarat High Court judgment aforesaid and hold that during the material period metallised yarn fell under item 15-A(2) and not under item 18-C.E.T.5. So far as the Department's alternative plea of time bar is concerned, we hold that it has been well taken. A part of the appellants' claim falls beyond the time-limit of one year then in force under rule 11 read with rule 173-J and would, thus, be hit by the time bar unless the appellants can establish that they had paid the duties under protest, 6. In the light of our above discussion, we allow this appeal on the point of classification and order that the amount of consequential refund to be paid to the appellants will be regulated by the time bar of rule 11 read with rule 173-J, as then in force, unless the appellants can prove to the satisfaction of the Assistant Collector that the duties had been paid under protest throughout.