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TMI Blog2010 (8) TMI 737X X X X Extracts X X X X X X X X Extracts X X X X ..... by the department against the order passed by the original authority has been allowed. The original authority namely the Assistant Commissioner by his order dated 30-7-2003 had dropped the proceedings which were sought to be initiated against the appellants by issuance of show cause notice dated 3-11-2000. The consequence of allowing the appeal filed by the department against the said order is that the demand made under the said show cause notice stands revived and confirmed. Being aggrieved, the appellants have filed the present appeal. 3. The appellants are the manufacturers of processed Cotton and Man Made Fabrics classifiable under Chapter 52, 54 and 55 respectively of the Central Excise Tariff Act, 1985. Under Notification No. 41/98-C.E. (N.T.), dated 16-12-98 the processed textile fabrics manufactured with the aid of hot air stenter were specified as the notified goods on which the duty of excise was to be levied and collected in accordance with the provisions of the Section 3 A of the Central Excise Act, 1944. The appellants, therefore, filed the declaration dated 15-12-98 under Rule 3(1) of the Hot Air Stenter Independent Textile Processors Annual Capacity Determination ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ipur-II reported in 2002 (146) E.L.T. 254 (S.C.) and that the dismissal of the writ petition, which was filed before the Hon ble Rajasthan High Court, would not entitle the department to claim the said amount. In fact, the said writ petition was disposed of being dismissed as withdrawn on 31-7-2002 and the said fact was communicated by the appellants to the department under their letter dated 17-6-2003. Upon hearing the parties, the Assistant Commissioner dropped the proceedings on the basis of the decision of the CEGAT confirmed by the Apex Court in the matter of S.P.B.L. case. Being aggrieved, the department carried the matter in appeal before the Commissioner (Appeals) which was allowed by the Commissioner (Appeals) Jaipur by the impugned order. The Commissioner (Appeals) has held that the dismissal as withdrawn of the writ petition filed by the appellants against the order of the adjudicating authority including the length of galleries for the purpose of assessment and determination of the duty liability has resulted in giving finality to the order passed by the Commissioner on 5-10-99 and, therefore, the appellants are liable to pay the short duty paid in terms of the show cau ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner of Customs (Import), Mumbai reported in 2009 (236) E.L.T. 23 (Bom.) submitted that the law on the point that in the absence of challenge to the assessment order, the assessee cannot dispute the liability arising under the assessment order has been well settled by the decision of the Apex Court as well as of the Tribunal. He further submitted that challenge to the order of the assessment has to be in accordance with the procedure prescribed under the statute and not otherwise. Failure in that regard cannot entitle the assessee to dispute the liability arising under such order, while contesting some other proceedings including the execution proceedings of such order. Being so, according to the DR since the order dated 5-10-99 deciding the duty liability of the appellants having not been challenged by way of appeal and the writ petition which was filed against the same having been dismissed as withdrawn, it is not open to the appellants to dispute the liability of the appellants arising under the said order dated 5-10-99. 6. Referring to the decision of the Bombay High Court in Om Textile Pvt. Ltd. it was sought to be contended on behalf of the department that same was in the fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at drying machine and other equipments which are installed in or attached to a stenter for aiding the process of heat setting or drying of the fabrics. The challenge to the said decision was rejected holding that the arguments against the said views were rightly rejected by the Tribunal. Being so, the contention that galleries are to be excluded while finalizing the assessment and the duty liability in relation to the cases similar to that of to the appellants cannot be disputed. Equally the learned Advocate for the appellants is right in contending that the decision being of clarificatory in nature, it will have retrospective effect. The decision of the Apex Court in S.P.B.L. and of the Tribunal in Premium Suiting Pvt. Ltd. case are very clear in that regard. 9. It is, however, to be noted that as far as the case of the appellants is concerned, the same was decided much prior to the decision of the Apex Court, and the said decision was not challenged by way of appeal, though the order was appealable under the said Act. At the same time, the writ petition filed against the said order was dismissed as withdrawn. According to the DR, therefore, in the appellants case, the issue st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peal lay from the order dated 12th July, 1999. However, the appellant objected to the invocation of length or the gallery having no fan or radiator attached to it in counting the number of chambers in response to the show-cause notice dated 4th January, 2000 . It was in the background of above stated facts, the Hon ble Bombay High Court held that the Tribunal was not right in sustaining demand on the basis of length of gallery contrary to the law laid down by the Apex Court in S.P.B.L. case and merely on the ground that the order dated 12th July 1999 had attained finality. In other words, the decision was on the basis that the order dated 12th July 1999 was not an appealable order and there were no challenge thrown to the said order in any independent or substantive proceedings and in those circumstances the authorities below including the Tribunal could not have ignored the decision of the Apex Court in S.P.B.L. case for confirming the demand. 13. In Aman Medical Products case, in para 5 of the decision to which attention was drawn, it was held thus:- The Tribunal has referred to the cases of CCE, Kanpur v. Flock (India) Pvt. Ltd.,[2000 (129) E.L.T. 285] and Priya Blue Indu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s already been paid. Then it calls upon the appellants to pay the balance amount. Thus, there has been adjudication and there is a demand. It may be that this order is not in the format prescribed. It may also be that principles of natural justice were not followed but those are grounds on which the order could have been challenged. In fact, these grounds were taken in the writ petition. However, those grounds were not pressed. We have, therefore, not looked into these aspects and express no opinion thereon . 17. The ratio of the decision of the Apex Court is to the effect that even though there is a challenge to an order before the Court, but when the matter comes for hearing certain grounds of challenge are given up and not pressed for, the ultimate order which is delivered does not amount to expression of any opinion or decision on those grounds which were not pressed for. We fail to understand the applicability of this decision in the matter in hand. 18. In Flock (India) Pvt. Ltd. case, the Apex Court had held that in a case where an adjudicating authority has passed an order which is appealable under the statute, but the party aggrieved by such order does not choose to exe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y High Court in Karan Associates case has held that merely because the assessment order was not a speaking order or detailed order, it would not cease to be an order of assessment under the statute and if such order is not challenged in the manner known to law, it would attain the finality. In fact, it was held thus :- The argument of the appellant that unless an appealable speaking order is passed, the importer cannot file an appeal against the assessment order is without any merit. Assessment order passed on the bill of entry is an appealable order and the same can be challenged even in the absence of a speaking order. In other words, in the absence of a speaking order, it cannot be said that the assessment order is not appealable. Where an assessment order is passed without giving reasons and in spite of repeated requests reasoned order is not passed, proceedings can be initiated for setting aside the assessment order passed on the bill of entry. In the present case, save and accept writing letters no proceedings have been initiated for setting aside the assessment order. Therefore, the fact that the assessing officer has not passed a speaking order would not entitle the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Or else, the order would attain finality. Once the order attains finality, the obligations arising under the order are required to be complied with. 23. The decision of Bombay High Court in Om Textile Pvt. Ltd. is not contrary to what we have stated above. In the said case, the High Court was informed that the order dated 12th July, 99 was not appealable and it could be challenged only by way of independent and substantive proceedings. In that respect, it was observed that the objection to the correctness could have been raised in the proceedings initiated for recovery of the duty. With utmost respect the observations are contrary to the rulings by the Apex Court in Flock (India) case. It has been specifically held in Flock (India) case and at the cost of repetition, we may reproduce relevant portion which reads : The provisions indicates the importance attached to an order of the appellate or revisional authority under the Act therefore, an order which is appealable under the Act is not challenged then the order is not liable to be questioned and the matter is not to be reopened in a proceeding for refund which if we may term it so is in the nature of execution of a decree/or ..... X X X X Extracts X X X X X X X X Extracts X X X X
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