1. Appeal under Section 35B of the Central Excises and Salt Act, 1944 praying that in the circumstances stated therein, the Tribunal will be pleased to set aside the order of the Appellate Collector of Central Excise, Madras with consequential relief.
2. This appeal coming up for orders upon perusing the records and upon hearing the arguments of Shri K.A. Nayar, Advocate for the appellant and upon hearing the arguments of Shri S.K. Choudhury, Senior Departmental Representative for the respondent, the Tribunal makes the following: 3. An application for refund of Rs. 2,48,314.37 was made by the appellant in respect of rice bran hydrogenated oil used in the manufacture of soap and was rejected by the Asstt Collector of Central Excise, Integrated Division, Kozhikode, under his Order C.No.V/15/lb/3/79 dated 5.12.79, as the request for availing of the procedure for set off which, inter alia, involves observance of the procedure under Rule 56A of the Central Excise Rules, was not made during the relevant period (1.3.1978 to 22.2.1979) but on 28.2.1979. He also observed that refund of the credit in cash was not permitted in terms of Rule 56A which had been made applicable to the set off under Notification No. 33/63 dt. 1.3.63. The Appellate Collector of Central Excise, Madras, rejected an appeal against the order of the Assistant Collector on substantially the same points vide his order C.No.V/15/180 dated 11.12.1980. The appellants, aggrieved by this order, filed a revision petition before the Govt. of India which, in terms of Section 35P of the Central Excises and Salt Act, 1944 has been transferred to the Tribunal.
4. Before us, the learned Counsel for the appellant pointed out that the classification of rice bran hydrogenated oil, whether it was under Tariff Item 13 or Tariff Item 12, was in dispute and the duty was being paid under T.I. 13 under protest. Finally, the Appellate Collector of Central Excise decided the issue on 29.1.79 and found that classification should be under T.I 12. Under the circumstances, no application was made earlier to 28. 2.79 as the set off provided in Notification No. 33/63 is not applicable to a product not classifiable under item 12 of the Central Excise Tariff. While we appreciate the difficulty faced by the appellant, it does not absolve the appellant from the requirement to apply for the concession as envisaged in Rule 56A read with notification No. 33/63 in time. The appeal should, therefore, fail, and accordingly we dismiss it.
5. Our attention was drawn by the learned Counsel for the appellant to the provisions of Rule 56A (2B) as inserted by Notification No. 15'81 dated 21.2 81 (and amended by Notification No. 8/82 dated 31.1.82) under which the appellant could make an application to the Collector for relaxation of the provisions of Rule 56A in a situation where classification of the raw material has been changed. However, the matter was not elaborated upon and therefore, we express no opinion as to the applicability of this Sub-rule to the circumstances of this case. If and when an application under the Rule is made by the appellant, the Department will consider it on merits.