ORDER
S. Kalyanam, Member (J)
1. This appeal is filed by the Collector of Central Excise, Bangalore and is directed against the order of the Collector of Central Excise (Appeals), Madras dated 15-12-1987. The respondent herein are manufacturers of Ethyl Acetate failing under Chapter 2907.90 and filed a refund claim in respect of the duty paid on ethyl acetate on the ground that the same is exempted from payment of duty in terms of Central Excise Notification 217/86, dated 2-4-1986. The respondent contended that though the benefit of this notification was not claimed in the classification list, the respondent, coming to know about the applicability of the notification to them, took out a refund claim under Section 11B of the Central Excises and Salt Act, 1944 before the expiry of the period of limitation of six months from the date of payment of duty. The refund claim was rejected by the original authority on the ground that the respondent herein had not claimed the exemption in terms of the aforesaid notification while filing the classification list and the lower appellate authority reversed the order of the original authority and granted the refund, as a result of which the Collector of Central Excise, Bangalore has preferred the present appeal.
2. Shri K.M. Vadivelu, the learned Departmental Representative submits that inasmuch as the benefit of the notification was not claimed by the respondent in the classification, the respondent should have challenged the correctness of the same in a manner known to law by filing an appeal before the proper appellate authority and not having done that, cannot independently have recourse to a claim of refund under Section 11B of the Act. The learned D.R. in this context placed reliance on the ratio of the ruling in the case of ‘Herschel Rubber (Pvt.) Ltd. v. Collector of Central Excise, Calcutta’, reported in 1987 (30) E.L.T. 454 (Tribunal), and also on the ruling of the Special Bench in the case of ‘Modi Rayon and Silk Mills v. Collector of Central Excise, Meerut’, reported in 1987 (29) E.L.T. 933 (Tribunal).
3. Shri Ramakrishna, the learned Consultant for the respondent submitted that admittedly the respondent is entitled to the benefit of the notification and the amount in question claimed as refund. The right of the respondent to the claim for refund in terms of Section 11B cannot be whittled down on a technical ground that the respondent did not claim it in the classification list. The learned consultant in this context placed reliance on the ruling of the Tribunal in the case of ‘Delhi Chemicals and Pharmaceuticals Works (P) Ltd. v. Collector of Central Excise’, reported in 1988 (37) E.L.T. 257. The learned consultant also relied on the ruling of the Supreme Court in the case of ‘Elson Machines Private Ltd. v. Collector of Central Excise’ -1988 (38) E.L.T. 571 (SC).
4. We have carefully considered the submissions made before us. It is not disputed by the Department that the respondent is entitled to the benefit of the notification in question and that the refund was not granted on the ground the respondent herein did not make a specific claim of the said notification in the classification list filed. This argument of the learned D.R. cannot be acceded to. The ruling of the Special Bench in Delhi Chemicals case, comprising three learned Members, was rendered on 27th June 1988 where an identical issue arose for consideration; that was also a case where the refund claim of the party was rejected on the ground that the party had not made a claim for the benefit of Notification 80/80 in their classification. The Special Bench held in that case as under:
“5. We have carefully considered the submissions of both sides. In the case of Ceat Tyres (supra), the Bombay High Court has held, in the context of Section 72 of the Indian Contract Act, that the department cannot be allowed to take advantage of the mistake committed by the petitioner in paying a higher amount to the department and the department cannot be allowed to retain any such amount which it would not have received but for the mistake on the part of the petitioner in paying it in the first place. In the case of Sahu Cylinders (supra), this Tribunal rejected the contention that merely because an assessee paid duty voluntarily in excess, he is not entitled to claim refund thereof.
6. In the present instance also, the appellants cannot be denied the benefit of Notification No. 80/80 only on the ground that they had paid duty without claiming its benefit at the time of clearance of the goods. We, therefore, set aside the orders of the lower authorities and remand the matter to the Asst. Collector for de novo consideration of the claim with reference to Notification No. 80/80 and other provisions of law.”
The Supreme Court in Elson Machines case has repelled the contention of the party that once a classification list is approved, the Excise authority was estopped from taking a different view. The Supreme Court held that there can be no estoppel against the law and “the claim raised before us is a claim based on the legal effect of a provision of law and, therefore, this contention must be rejected”. The Calcutta High Court has also in the case of ‘I.T.C. Ltd. and Anr. v. Union of India and Ors.’, reported in 1988 (34) E.L.T. 473 (Cal), held that Section 11B of the Act has provided the substantive and the machinery provision for refund of any excess duty paid under Section 11B cannot be interpreted in such a way as to render it negatory and unworkable. In the present case, admittedly the respondent is entitled to the benefit of the notification and consequential refund. It is also admitted that the respondent took out an application for refund before the expiry of the period of limitation under Section 11B of the Act. In such a situation, merely because either due to ignorance or due to inadvertence the respondent did not claim the exemption in the classification, the respondent cannot be denied the right to claim the refund under Section 11B of the Act. Section 11B confers an independent right and a substantive right on the respondent to claim refund if it is otherwise permissible in law. The respondent cannot be estopped from claiming the refund merely on the ground that he did not claim the benefit of the notification in the classification. Since the ruling in Modi Rayon and Silk Mills case is that of two learned Members’ of the Special Bench and the ruling in the Delhi Chemicals case is a concurrent finding of the view of three learned Members, we follow the ratio of the Special Bench ruling in the Delhi Chemicals case and hold that the respondent is entitled to the refund amount in question. In this view of the matter, we uphold the finding of the lower appellate authority in the impugned order and dismiss the appeal.
5. When the respondent has succeeded before the lower appellate authority and does not have any grievance against any part of the impugned order, we are unable to see as to how the cross-objection is tenable in law. Shri Ramakrishna, the learned consultant, to a query from us stated that only by way of an objection to the appeal he filed a cross-objection. Accordingly in the circumstances the cross-objection is dismissed as misconceived in law.