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TMI Blog2015 (9) TMI 203X X X X Extracts X X X X X X X X Extracts X X X X ..... b. an amount of Rs. 3,41,032/- being the differential duty at the rate of 10% adv. Payable for the clearances made during the year 1996-97 (upto 31.05.96) should not be demanded under rule 9 (2) of the C Ex Rules 1944 read with Section 11 A of CESA 1944, c. Bonding gum/repair gum should not be classified under Chapter sub-heading No.4006.10 instead of 4006.90 as claimed by the assessee and also an amount of Rs. 1,76,853/- being the duty payable on bonding gum for the clearances made during the financial year 1995-96 and in the year 1996-97 (upto 31.05.96) should not be demanded under the C Ex Rules 1944 read with Section 11A of CESA 1944 and d. A penalty should not be imposed on them under Rule 173Q and 226 of C Ex Rules 1944 for contravention of Rule 9 (I), 52A, 173B, 173C, 173F, 173G and 226 of C Ex Rules, 1944. Pursuant to the said show cause notice, the assessee submitted the explanation followed by a written brief on 11.09.1997. After considering the said written brief and the oral arguments, the Deputy Commissioner passed the following order: "Under Rule 9(2) of CEx Rules, I confirm the duty demand of Rs. 4,41,844/- being the differential duty payable on the clearances ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he following question for consideration: "Whether the Tribunal is justified in upholding the order of the lower authority despite the fact that there is no estoppel against the statutes and it is always open to the appellant or an assessee to adopt the correct assessable value in terms of Section 4 (1) (a) of the Central Excise Act, 1944 for the purpose of computing the clearances in terms of above said notification, notwithstanding the fact that duty was paid incorrectly at higher value by mistake or otherwise?" In our opinion, though the above question was framed at the time of admitting the appeal, on the facts and in the circumstances of the case, in our opinion, it does not arise for our consideration in view of the order under Rule 173-I of the Rules, whereby the value of clearance for the products was determined and in the absence of challenge to the order, the question of its re-determination does not arise. It is also pertinent to note that the instant proceedings are only in the nature of consequential proceedings and not the main proceedings arising from the order of assessment. It would be relevant to mention few facts that are relevant for taking such view. Appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessable value was declared by the appellants themselves and they have paid the duty on the said value without any dispute and the assessments were finalized. Therefore at this stage they cannot come up for re-opening an issue which is already settled. The Commissioner (Appeals) in his order has rightly given the findings which are as under: "9. I have considered the submissions made by the appellants. I find that the assessable value of all the goods have been arrived at by the appellants themselves before hand and the Central Excise duty was paid by them accordingly. The assessments have also been finalized on the basis of the assessable values declared by the appellants. The appellants have never disputed the assessable values at the time of finalization of the assessments. If the appellants had any grievance, they should have taken up the matter with the proper officer at the appropriate time for reconsideration citing the case laws and other relevant factors, who would have considered the same and would have passed appropriate orders in accordance with law. This, the appellants failed to do. It is now too late in the day for the appellants to turn around and dispute the as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f item and the said order, though appealable, is not challenged by the assessee in appeal, whether, in the application for refund of the duty paid, the assessee is entitled to question the order of the Assistant Collector as erroneous. Relevant observations made by the Supreme Court in paragraph 10 read thus: "10. 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 appelable 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 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 exc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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