2010 (8) TMI 737 - AT - Central Excise

Writ petition Refund - in cases where there are assessment orders and they are not challenged by way of appeal, it is not open to the parties to such proceedings to question the correctness of such orders in refund proceedings, while holding that the same proposition may not be attracted in cases where no assessment order is passed, no infirmity in the impugned order and therefore, the appeal fails and is hereby dismissed. See Priya Blue Industries (2004 -TMI - 47045 - SUPREME COURT OF INDIA) and Flock (India) (2000 -TMI - 45478 - SUPREME COURT OF INDIA)

Issues Involved:
1. Validity of the Commissioner's re-determination of annual production capacity and duty liability.
2. Impact of the Supreme Court's decision in S.P.B.L. case on the present case.
3. Finality of the unchallenged assessment order dated 5-10-99.
4. Applicability of the Delhi High Court and Bombay High Court decisions.
5. Legal implications of withdrawing the writ petition.

Detailed Analysis:

1. Validity of the Commissioner's Re-determination of Annual Production Capacity and Duty Liability:
The appellants, manufacturers of processed Cotton and Man Made Fabrics, initially had their annual production capacity determined by the Commissioner. This was later re-evaluated, leading to an increased duty liability. The Commissioner re-determined the annual production capacity and duty liability due to a re-verification of the data furnished by the appellants. The appellants sought permission to increase the number of chambers, which was granted, and the duty was subsequently revised. The appellants contested the revised duty, leading to a show cause notice for the recovery of the difference in duty.

2. Impact of the Supreme Court's Decision in S.P.B.L. Case on the Present Case:
The appellants argued that the issue of including the length of galleries in the stenter for duty assessment was settled in their favor by the Supreme Court in the S.P.B.L. case. They contended that the law laid down by the Supreme Court was clarificatory and retrospective, thus applicable to their case. The Assistant Commissioner initially dropped the proceedings based on this precedent, but the Commissioner (Appeals) later revived the demand, stating that the dismissal of the writ petition meant the original order attained finality.

3. Finality of the Unchallenged Assessment Order Dated 5-10-99:
The Commissioner (Appeals) held that since the appellants did not challenge the assessment order dated 5-10-99 by way of appeal and the writ petition was dismissed as withdrawn, the order attained finality. The Department argued that the appellants could not dispute the duty liability determined by the unchallenged order. The Tribunal upheld this view, referencing the Supreme Court's decision in Flock (India) Pvt. Ltd., which emphasized that unchallenged orders cannot be disputed in subsequent proceedings.

4. Applicability of the Delhi High Court and Bombay High Court Decisions:
The appellants relied on various judgments to support their case, including decisions from the Delhi and Bombay High Courts. The Tribunal noted that the Bombay High Court's decision in Om Textile Pvt. Ltd. was based on the premise that the order in question was not appealable. However, in the present case, the order dated 5-10-99 was appealable, and the appellants did not pursue an appeal. The Tribunal also distinguished the Delhi High Court's decision in Aman Medical Products, which dealt with cases where no assessment order was passed.

5. Legal Implications of Withdrawing the Writ Petition:
The appellants withdrew their writ petition, which was dismissed as withdrawn. They argued that the withdrawal was due to the Supreme Court's decision in the S.P.B.L. case, which settled the issue in their favor. However, the Tribunal noted that the writ petition was dismissed before the Supreme Court's decision. The Tribunal emphasized that the dismissal of the writ petition meant the original order remained unchallenged and attained finality, making the duty liability under the order executable.

Conclusion:
The Tribunal dismissed the appeal, upholding the Commissioner's order that revived the demand for the short-paid duty. The Tribunal emphasized the finality of unchallenged assessment orders and the necessity of following statutory procedures for challenging such orders. The decision reinforced the principle that unchallenged orders cannot be disputed in subsequent proceedings, aligning with the Supreme Court's rulings in similar cases.

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