ORDER
P.K. Desai, Member (J)
1. This appeal is directed against the order in appeal No. M-659/AHD-298/86, dated 24-3-1987, confirming the order in original No. 6/Refund/85 (F. No.V/18-33/MP/84/3027), dated March, 1985.
2. The brief facts leading to the refund claim filed by the appellants as reflected from the records are that there was a classification dispute existing and in the review order No. 4/1982, dated 30-4-1982 of the Collector of Central Excise, Baroda, the classification was fixed under T.I. 23A(4) and the direction was given that the duty differential may be accordingly worked out and paid by the appellants. However, the appellants did not make payment for a considerably long period and pursuant to an endorsement made by the Supdt. on RT. 12 returns in the month of May & June, 1993, they made the payment and subsequently, within a period of six months, they filed a refund claim raising a contention that by short endorsement on RT. 12 returns, the demand could not be raised and therefore the recovery that the Department had made ought to be refunded. The adjudicating authority, however, rejected the claim.
3. Shri Sindhi, the ld. consultant, appearing for the appellants, submits that it is a settled law as per the judgment of the Supreme Court in the case of Collector of Central Excise, Baroda v. Kosan Metal Products Ltd. – 1988 (38) E.L.T. 573 (S.C.) that no demand could be raised by short endorsement made on RT. 12 returns. He has also referred to the decision of this Bench in the case of Vidarbha Paper Mills v. Collector of Central Excise, Nagpur and also the decision of the South Regional Bench in the case of Collector of Central Excise v. Doorvani Cables P. Ltd. – 1990 (47) E.L.T. 134 (Tribunal). He pleads that the recovery made by endorsement on RT. 12 returns is illegal and the amount so recovered has to be refunded. On a query made by this Bench, he submits that the review order of the Collector in relation to the classification is already challenged and the matter is lying pending with the Supreme Court.
4. After hearing Shri Harnek Singh, the ld. JDR, and perusing the records, there is no dispute that the amount which has been recovered by endorsement on the RT. 12 returns is the amount that had become payable by the appellants pursuant to the order of the Collector in the review of classification. What is challenged by Shri Sindhi is the method of recovery adopted by the Department. it is true that the Supreme Court’s decision followed by the various Benches of the Tribunal held that no demand can be raised by short endorsement on the RT. 12 returns and show cause notice ought to be issued. The ratio of those decisions would not stand attracted here inasmuch as, the appellants are not contesting the demand pursuant to the short endorsement on RT. 12 returns but they, having paid that amount, now claim the refund of the same by pleading that the method of recovery is erroneous. The amount recovered is in conformity with the order passed by the Collector in review of classification, and no refund claim can be entertained merely because the mode of recovery may not be proper. Under these circumstances, the claim for refund of the amount lodged by the appellants is not sustainable and has been rightly rejected. It may, however, be made clear that if the Supreme Court decision is in favour of the assessee and in pursuance of that order, consequential relief if any may become available, then the amount may become refundable. However, that is not the issue before the Bench.
5. Appeal is rejected.
