2016 (8) TMI 489

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..... R Per Dr. D. M. Misra Heard both sides and perused the records. 2. This is an appeal filed against the OIA No.RKA/381/SRT-I/08, dt.11.04.2008, passed by Commissioner (Appeals), C.Ex. & S.Tax, Surat-I. 3. Briefly stated the facts of the case are that the Appellant are engaged in the manufacture of processed man made fabrics with the aid of Hot Air Stenter and discharging duty under Compounded L .....

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..... Court in CCE, Jaipur-II Vs S.P.B.L. Ltd  2002 (146) ELT 254 (SC).  Consequently, the Appellant filed the refund claim as the duty was paid under protest.  The refund claim was rejected on the ground that the assessment order/determination of annual capacity of production was not challenged before the appropriate forum.  Aggrieved by the same, the Respondent filed an appeal befo .....

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..... cturer 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 Sectio .....

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..... case where classification of a product was the controversy. The Assistant Collector passed an order of such classification. Such order though appealable, was not challenged by the assessee. The assessee, however, filed a refund claim. The Apex Court observed that there is little scope for doubt that in a case where an adjudicating authority has passed an order which is appealable under the statut .....

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..... le order." 7. The aforesaid judgment of the Hon'ble Gujarat High Court is clearly applicable to the facts and circumstances of the present case. Accordingly,  for allowing refund of duty paid under protest  by the Appellant consequent to the Order pertaining to  determination of annual capacity of production by inclusion of length of gallery, the said Order need not be separate .....

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