hvn IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO. 2260 OF 1990 M/s. Auroplast India Limited ... Petitioner Versus Union of India and Ors. ... Respondents Mr.M.R. Baya for Petitioner. None for Respondents. CORAM : F.I. REBELLO & D.G. KARNIK, JJ. DATED : AUGUST 11, 2009 P.C. The Petitioners are engaged in the manufacture of high density polyester HPT and Polyester tapes fabrics, ovan sacks at the factory situated at Boisar, Tarapur, District Thane. The Petitioners were holding L-4 licence for the purpose of manufacture of the said goods under the Central Excise Salt Act, 1944 (hereinafter referred to as “Act”). According to Petitioners, the goods were exempted from payment of excise duty. There appears to have been dispute as to classification pursuant to which Petitioners filed Writ Petition No. 2042 of 1990. This court by order dated 17.7.1990, was pleased to direct Respondent No. 2 to approve the classification list within one week. Second respondent accordingly approved the classification list. By the present petition, Petitioners seek to challenge the illegal claim of excise duty on the said goods. Petitioners rely on the judgment of the M.P. High Court in Raj Vs. Union of India 1990 (50) ELT 201 (MP). It is pointed out that the direct and immediate consequence of the impugned action on the part of the respondents is that the petitioners are compelled to pay excise duty on the goods. The Petitioners according to them under the mistake of law filed classification list wrongly and claimed classification of goods under the tariff heading No. 54, 59 and 63. That list was approved by the respondents based on which the goods were cleared on payment of excise duty. On realizing the mistake under the covering letter dated 6.5.1989, the Petitioners filed revised classification list with effect from 1.3.1989 claiming classification under various sub headings of tariff hearing 39. As the respondents failed and or refused to approve the classification under those headings, the present petition. The Petitioners have prayed to forthwith to assess and classify the said goods, to refund the sum of Rs. 1,16,07,736.77 wrongly paid as excise duty by the Petitioners on the goods cleared on 1.3.1986 and 5.5.1989 along with interest and to refund the excise duty paid by the Petitioners under protest with effect from 6.5.1989 together with interest at the rate of 18%. Reply has been field on behalf of Shri. Ranbir Sigh. In Para 2 of the affidavit in reply it is set out that the Assistant Commissioner vide his order dated 17.8.1990 rejected the claim for refunds on various grounds that has not been challenged and consequently nothing survives in so far as Prayer Clauses (a(ii) and (a)(iii) are concerned. In Para 4 it is set out that the Central Board of Excise and Customs Order No. 92 dated 24.9.1992 issued under section 37 of the Central Excise and Salt Act has clarified that as subject matter of the present petition shall be classified under sub heading 39.20 of 32 so far as HDPE tapes are concerned. It is further clarified that in so far as sacks therein are concerned, the same is classified under 3923.90. Considering this order by the Central Board of Excise and Customs, it will be clear that the Petitioners were right in their contention that the goods ought to be classified under respective heading of chapter 39. Considering the order prayer clause (a)(i) will have to be granted. In so far as Prayer Clause (a)(ii) is concerned, this was for the period prior to 6.5.1989. In terms of the reply, the refund has been rejected. Apart from that the Petitioners themselves had classified the goods may be according to him under the mistake under heading 54, in so far as prayer Clause (a)(ii) is concerned, therefore, it will not be possible for this court to consider any relief as that order rejecting the claim for refund is not subject matter of the present petition. However, in so far as the period from 6.5.1989 to 30.6.1990 considering the order by the Central Board of Excise and Customs, the Petitioners will be entitled to be assessed under the respective headings of Chapter 39. We may mention that at the time of admission of the Petition on 1.8.1990, this court was pleased to grant interim relief in terms of Prayer Clause (b) subject to Petitioners furnishing bank guarantee for 50% and bond for the balance 50% on the differential amount of duty. Prayer Clause (b) was in respect of goods to be classified and cleared during the pendency of the Petition. In the light of that Petition disposed of with the following directions : (1) Respondent No. 2 to complete the assessment of the goods under respective headings of Chapter 39 for the period from 6.5.1989 till date. (2) Refund if any will be subject to the other provisions of the Central excise and Rules made thereunder. The entire exercise to be completed at any rate not latter than twelve weeks from the copy of hits order being served by the Petitioners on Respondent No. 2. Rule made absolute accordingly. No order as to costs. (D.G. KARNIK,J.) (F.I. REBELLO,J.)