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TMI Blog2003 (11) TMI 160X X X X Extracts X X X X X X X X Extracts X X X X ..... issioner (Appeals) set aside the Deputy Commissioner's orders and allowed consequential relief. The Revenue is aggrieved by this order and have filed the subject appeals. 2.Briefly the facts are that the respondents are engaged in the manufacture of excisable goods falling under Chapters 52, 54 and 55 of the Schedule to the Central Excise Tariff Act, 1985. They were discharging duty liability under compounded levy scheme under Section 3A of the Central Excise Act, 1944. They filed refund claims for the duty paid by them on galleries of stenter machine installed in their factory during the period from 16-12-1998 to 28-2-2000. The respondents filed refund applications for the excess duty paid. On receipt of the refund applications, show cau ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The annual production capacity is determined on the APC Rules, 1998. Rule 3(4) of these Rules empowers the Commissioner to pass an order determining the APC of an independent processor based on the parameters declared by the manufacturer and verified by the Central Excise officers. In the case of the claimants, it is a fact that the proper officer, i.e. the Commissioner, has adopted certain parameters to arrive at the APC. If the claimants were aggrieved by such determination of APC, they should have filed an appeal against that order of determination, succeeded in such an appeal and then only should have come up for a refund. The claimants have not succeeded in upsetting the order of the Commissioner who determined the APC. The Deputy Comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nded that duty was paid under protest and so the time-limit under Section 11B does not apply and that their invoices show that incidence of duty has not been passed on to their buyers. In support of these claims, they have produced some T.R. 6 challans on which a notation is made "duty is paid under protest", filed copies of PLA where a similar notation seems to have been made and invoices raised by them on their buyers to show that the incidence of duty has not been passed on. The Commissioner (Appeals), however, did not examine the veracity of this evidence but proceeded to decide the case in their favour stating that the inclusion of galleries in the dimension of the chamber is unconstitutional and therefore the levy of duties is unconst ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion rendered in someone else's case; that an order passed by a competent authority becomes final unless it is upset by a superior judicial forum; that all refund claims should be made in accordance with the provisions of Section 11B of the Central Excise Act except in those cases where the levy itself is held to be unconstitutional by a competent court and that the Commissioner (Appeals)'s decision is contrary to the law laid down in Mafatlal Industries Ltd.'s case. 6.During the course of arguments, the learned Jt. CDR dwelt on the provisions of Rule 233B of the Central Excise Rules wherein the procedure to be followed by an assessee when he wishes to pay duty under protest is laid down. He averred that the respondents did not follow the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ras High Court in the case of Gemini Metal Works v. UOI - 1985 (22) E.L.T. 27 (Mad.) = 1985 ECR 2457. His contention is that the refund itself arose out of an order illegally passed by the Commissioner. One can challenge that order in a collateral proceeding such as a claim for refund of duty arising out of that order. The Department cannot argue that the refund claim is not maintainable as the APC fixation order has not been set aside. He distinguished the decisions of the Supreme Court in Mafatlal Industries Ltd. v. UOI - 1997 (89) E.L.T. 247 as well as CCE, Kanpur v. Flock (India) Pvt. Ltd. - 2000 (120) E.L.T. 285, stating that in those cases the Court was concerned with orders passed in accordance with law. In his case, the order fixing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee to claim extended period of time for the purpose of claiming a refund. This procedure has not been followed by the respondents. We observe that such a procedure need not be followed in a case where an assessee goes in appeal against an order or decision involving payment of duty. But in this case, the respondents never appealed against the order of the Commissioner of Central Excise fixing the APC and still hold that they have paid duty under protest. Any assessee who pays duty under protest does so when he wishes to file an appeal against the order or a decision. Viewed in this light, the respondents' claim that duty was paid under protest as evidenced by T.R. 6 challans looks highly suspicious. Granting without conceding that duty ..... X X X X Extracts X X X X X X X X Extracts X X X X
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