2016 (8) TMI 489

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... TMI 118 - GUJARAT HIGH COURT]. Therefore, by applying the same, 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 separately appealed. - Decided against the Revenue
Dr. D.M. Misra, Member (Judicial) For the Appellant : Shri L. Patra, A.R. For the Respondent : Shri Rahul Gajera, Advocate ORDER 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 manu .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... ed that the issue is squarely covered by the judgment of the jurisdictional Hon'ble Gujarat High Court in the case of Premraj Dyeing & Printing Mills Pvt. Ltd Vs UoI 2013 (288) ELT 357 (Guj.) 6. I find that the issue is no more res integra being covered by the judgment of Hon'ble Gujarat High Court in Premraj Dyeing & Printing Mills Pvt. Ltds case, wherein their Lordships have observed as:- "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 .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... en 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 the order. It was, thus, clearly a case where an order which was appealable 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." 7. The aforesaid judgment of the Hon'ble .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X