9911796707
TMI Blog2008 (4) TMI 741X X X X Extracts X X X X X X X X Extracts X X X X ..... eard both sides. 2. The Revenue filed this appeal against the impugned order whereby Commissioner (Appeals) allowed the refund claim of the respondents by following the decision of Hon ble Supreme Court in the case of CCE v. SPBL reported in 2002 (146) E.L.T. 254. 3. The brief facts of the case are that the respondents were engaged in the processing of man-made compounded fabric and paying the duty under Section 3A of Central Excise Act. The respondents filed a declaration for fixation of their annual capacity of their hot air stenter under Section 3A of Central Excise Act and the Commissioner of Central Excise vide order dated 29-3-99 fixed the annual capacity of the hot air stenters of the respondents. The respondents paid duty accor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nter. The annual capacity of hot air stenter was fixed by the Commissioner of Central Excise vide order dated 29-3-99. The order passed by the Commissioner of Central Excise fixing the capacity of hot air stenter as per the provisions of Section 3A of Central Excise Act is an appealable order, but appellant had not filed any appeal challenging the order. Thereafter, appellant paid duty accordingly. Subsequently, the appellant filed refund claim on the ground that length of galleries were not to be taken into consideration while fixing the capacity of the stenters. The appellant relied upon the decision of Hon ble Bombay High Court in the case of Om Textile Pvt. Ltd. (supra) which was followed by the Tribunal. The facts of that case are diff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Revenue held that the assessee cannot challenge the correctness of the adjudication order, in a refund claim. The Hon ble Supreme Court held as under :- Coming to the question that is raised there is little scope for doubt that in a case where an adjudicating authority has passed an order which is appealable under the statute and the party aggrieved did not choose to exercise the statutory right of filing an appeal, it is not open to the party 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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