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TMI Blog2015 (12) TMI 734X X X X Extracts X X X X X X X X Extracts X X X X ..... e sides and on perusal of the records, I find that the appellants were engaged in the manufacture of Textile Fabrics classifiable under CH 52, 54 and 65 of the Schedule to the Central Excise Tariff Act 1985. They were discharging duty liabilities under the Compounded Levy Scheme as per Annual Capacity of Production under Hot Air Stenter Independent Textile Processors Annual Capacity Determination Rules, 1998 issued under Section 3A of Central Excise Act, 1944. 3. Both the sides submit that these appeals involve on three issues viz.:- a) Refund claims cannot be accepted without challenging Annual Production Capacity (ACP) Order. b) The Refund claims are barred by limitation, and c) The appellant failed to fulfil the principle of unjust ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uthority under the Rules of 2000 or even under the earlier Rules of 1998, would not give rise to any appealable order. 17. If the determination was not appealable, in our view, it would be incorrect to hold that without challenging such an order, the manufacturer cannot claim refund of duty erroneously collected. The fact that the galleries were included while determining the Annual Production Capacity and as such, the galleries were otherwise not required to be included by virtue of the decisions of the Tribunal and the Apex Court, there is no dispute. In our view, therefore, the petitioners were justified in filing refund claims in terms of Section 11B of the Central Excise Act claiming refund of excess duty collected on the basis of su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was not challenged by the party. The legality thereof, however, was questioned in refund proceedings. It was in this background that the Apex Court held that the refund claim was not maintainable. In the present case, the facts are vitally different. We have already held that the determination of Annual Production Capacity by the prescribed authority under the Rules of 2000 did not give rise to an appealable order. 18. We may, however, recall that in the show cause notice, three objections were raised. The refund claims were declined only on one ground, namely, that without challenging the determination of annual capacity of production, the processor could not have sustained refund claim. In that view of the matter, the Deputy Commissione ..... X X X X Extracts X X X X X X X X Extracts X X X X
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