2005 (98) ECC 297 (Tri)

CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL

New Delhi -- Bench-NB(C)

Shri P.S. Bajaj, Member (J) and Shri K.C. Mamgain, Member (T)

Jindal Polyester Ltd.

Versus

CCE, Nasik

Appeal No. E/4127/03-NB(C)

[Arising out of Order-in-Appeal No. Cex/XI/JMJ/105/916/NSK/Appeal/2003 dated 13.5.2003 passed by the Commissioner of Central Excise (Appeals), Nasik.]

Final Order No. 12/05-C, dated 1.10.2004, Certified on 12.1.2005

Refund (C. Excise)

Order not challenged -- Claim for the refund of duty will not be maintainable where the order under which the duty was paid had not been challenged by the assessee -- Refund claim rejected.

[Para 3]

Appeal dismissed

PRESENT :

Shri L.P. Asthana, Adv. for the appellants.

Shri D.N. Choudhary, SDR for the respondent.

Cases Cited :

1. CCE v. Flock (I) Pvt. Ltd. 2000 (71) ECC 4 (SC)............................................... [Para 3]

2. Priya Blue Industries Ltd. v. CC (Preventive),
2004 (96) ECC 217 (SC)................................................................................ [Para 3]

Per : P.S. Bajaj

In this appeal, the appellants have questioned the validity of the impugned order-in-appeal, vide which the Commissioner of Customs (Appeals) has confirmed the order-in-original disallowing the refund claim of the appellants.

2. The facts are not much in dispute. The appellants are 100% EOU engaged in the manufacture of Bopet film. They were allowed duty clearance 25% of the production in value. Since they made DTA clearances after getting due permission in advance, the same were to be adjusted ultimately by working their total entitlement of the DTA clearance. They had been denied this benefit on the ground that their DTA clearances in terms of the quantity were not up to the requirement. At the time of de-bonding, they were called upon to pay the differential duty and they accordingly paid which was worked out at Rs. 28,90,300. Thereafter the appellants lodged the refund claim, which had been rejected by the authorities below.

3. We find that the order vide which the differential duty was claimed from the appellants, at the time of de-bonding was never challenged by them before the competent authority. That order had, therefore, attained finality. That being so, the ratio of the law laid down by the Apex Court in CCE v. Flock (I) Pvt. Ltd. 2000 (71) ECC 4 (SC) and Priya Blue Industries Ltd. v. CC (Preventive), 2004 (96) ECC 217 (SC) stands in the way of the appellants for claiming the refund. In those cases, it has been ruled that claim for the refund of duty will not be maintainable where the order under which the duty was paid had not been challenged by the assessee. Therefore, on this short ground alone, the refund claim of the appellants is liable to be rejected without going into its merits. Consequently, the impugned order is maintained though on a different ground and the appeal of the appellants is accordingly dismissed.

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