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TMI Blog2003 (8) TMI 80X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that about Rs. 60 crores are pending in appeals or stay orders and clearance regarding pursuing the appeal from the Committee of Secretaries have not been produced; that it was also mentioned in the said letter that in addition an amount of Rs. 5,16,25,238/- is pending recovery from them on account of inclusion of state surcharge, RPO charges and RPO surcharges in the assessable value and is required to be paid by the Appellants; that the Asstt. Commissioner had also mentioned that if the amount is not paid, coercive action including detention/attachment of excisable goods would be taken; that they under their letter dated 9-1-1998 represented to the Commissioner, Central Excise, Vadodara that head office is pursuing the pending appeals ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal in the case of Bharat Petroleum Corpn. Ltd. v. CCE, Cochin - 1999 (108) E.L.T. 402 (Tribunal) wherein it had been held that RPO charges, etc. are not includible in the assessable value; that, however, the Dy. Commissioner under Order-in-Original No. 84/2001, dated 4-4-2001 rejected their refund claim holding that the said amount had already been appropriated by the Supdt. and the said Order had not been set aside or challenged by the Appellants; that on appeal, the Commissioner (Appeals) has also rejected their appeal on the ground that they had not challenged the Order passed by the Supdt. relying upon the decision of the Supreme Court in the case of CCE, Kanpur v. Flock (India) Pvt. Ltd. - 2000 (120) E.L.T. 285 (S.C.). 2.2 The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s been held that "it will be futile to contend that each and every communication or order could be construed as a show cause notice." Finally the learned Sr. Counsel submitted that the unilateral action of the Revenue in appropriating the amount of Rs. 5.16 crores out of Rs. 10 crores deposited by them is also hit by Sections 59 and 60 of the Indian Contract Act. 3. Countering the arguments Shri Kumar Santosh, learned SDR, submitted that the amount which is the subject-matter of refund claim was appropriated by the Department under letter dated 10-2-98 which is an appealable order against which no appeal was preferred by the Appellants and accordingly the refund claim has been rightly rejected as the appropriation has attained finality; th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pon Para 99(iv) wherein the Supreme Court has held that "it is not open to any person to make a refund claim on the basis of a decision of the Court or Tribunal rendered in the case of another person. He cannot also claim that the decision of the Court/Tribunal in another person's case has led him to discover the mistake of law under which he has paid a tax nor any claim that he is entitled to prefer a writ petition or to institute to suit within 3 years of such alleged mistake of law.................... Once the assessment of levy has become final in his case he cannot seek to reopen it nor can he claim refund without opening such assessment/order on the ground of a decision in another person's case." The learned SDR, therefore, contended ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have contended that this amount which has been appropriated has never been demanded from them by issuing a show cause notice and/or by passing an Adjudication Order as required under the law. We find substantial force in this submission of the learned Sr. Counsel that it is the requirement of Section 11A of the Central Excise Act that where any duty of Excise has not been levied or not paid or has been short-levied or short-paid, a show cause notice has to be served within 6 months from the relevant date on the person chargeable with the duty requiring him to show cause notice as to why he should not pay the amount specified in the notice. The Revenue has not brought on record any show cause notice issued to the Appellants for including RP ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er ................... Therefore, it will be futile to contend that each and every communication or order could be construed as a show cause notice." Following the ratio of the Supreme Court judgment in the case of Metal Forgings, we hold that neither there was any demand nor any order by the department confirming the demand on account of RPO charges etc. The letter of the Supdt. intimating the appropriation of an amount cannot be equated with an order which requires an appeal on the part of the Appellants. We also observe that the Appellants have deposited an ad hoc amount of Rs. 10 crores under protest and the said deposit was not with reference to any particular amount pending against them as a result of Adjudication Order. We, therefore ..... X X X X Extracts X X X X X X X X Extracts X X X X
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