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TMI Blog2004 (4) TMI 440X X X X Extracts X X X X X X X X Extracts X X X X ..... the period 1985-1994, in respect of the duty paid on PCC/RCC poles manufactured and cleared from their Pole Yards should not be rejected. Ld. Commissioner (Appeals) has held that the respondents are eligible for refund of the said duty. The lower appellate authority has followed a decision of the Kerala High Court in the case of Kerala State Electricity Board (KSEB), upheld by the Supreme Court. That decision, which was based on the facts of that case, was to the effect that KSEB was not the manufacturer of the poles and that the goods had been manufactured by independent contractors. In the present appeal of the department, the High Court s decision in KSEB's case has been distinguished on facts. The appellant has relied on a decision of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... grieved did not choose to question the correctness of the order of the adjudicating authority subsequently by filing a claim for refund on the ground that the adjudicating authority had committed an error in passing his order. If this position is accepted then the provisions for adjudication in the Act and the Rules, the provision for appeal in the Act and the Rules will lose their relevance and the entire exercise will be rendered redundant. This position in our view, will run counter to the scheme of the Act and will introduce an element of uncertainty in the entire process of levy and collection of excise duty. Such a position cannot be countenanced. The view taken by us also gain support from the provision in sub-rule (3) of Rule 11, wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which was taken after examining the terms of contract was to the effect that TNEB was the manufacturer of the goods and not their contractors. The respondents in the present case have not shown that the terms of contract between them and their contractors for manufacturing the goods in question were different. Therefore, we are of the prima facie view that the question as to who manufactured the subject goods stood settled as per Tribunal s Order No. E/243/93-D ibid and, therefore, the refund claims filed by TNEB alleging that they were not the manufacturers of the goods were not liable to be allowed. The ruling of the Apex Court in the case of Flock (India) Pvt. Ltd., which we have reproduced above, is quite apposite. Accordingly to that r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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