2004 (97) ECC 656 (Tri)

CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL

New Delhi -- Bench-NB (C)

Shri S.S. Kang, Member (J) and Shri V.K. Agrawal, Member (T)

Goetze (India) Limited

Versus

CCE, Chandigarh

Appeal No. E/1193/2004-NB(C)

[Arising out of Order-in-Appeal No. 14/CE/CHD/04 dated 15.1.04 passed by the Commissioner (Appeals), Central Excise, Chandigarh]

Final Order No. 452/2004, dt. 28.6.2004, Certified on 13.7.2004

Refund claim

The finalisation of assessment was not challenged by the appellants -- The refund claim without challenging the appealable order, is not maintainable. In view of the decision of the Hon'ble Supreme Court, in the case of Frick (India) Ltd. v. Collector, 2000 (71) ECC 4 (SC), the Tribunal found no infirmity in the impugned order.

Appeal is dismissed

PRESENT :

Shri Gopal Bithar, Sr. Superintendent for the appellant.

Shri H.C. Verma, DR for the respondent.

Case Cited :

Frick (India) Ltd. v. Collector, 2000 (71) ECC 4 (SC) (Followed) ............................ [Para 2]

Per : S.S. Kang

The appellants filed this appeal against the Order-in-Appeal whereby the refund claim was rejected. The Commissioner (Appeals) in the impugned order held that the discounts in the assessable value were claimed by the appellants by way of refund after the finalization of provisional assessment.

2. The appellants were clearing the goods and were paying duty on provisional basis. The assessment was finalized and the discounts in the claim in the present refund application were disallowed by the Competent Authority while finalizing the assessment. The finalisation of assessment was not challenged by the appellants. It is an admitted fact that the finalization of assessment is an appealable order. Instead of filing appeal, the appellants filed the refund claim. We find that the Hon'ble Supreme Court in the case of Frick (India) Ltd. v. Collector, 2000 (71) ECC 4 (SC) : 2000 (120) ELT 285 held that the refund claim without challenging the appealable order, is not maintainable. In view of the above decision of the Hon'ble Supreme Court, we find no infirmity in the impugned order. The appeal is dismissed.

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