TMI Blog2014 (3) TMI 51X X X X Extracts X X X X X X X X Extracts X X X X ..... roduction 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 such consideration of galleries in determining Annual Production Capacity and collecting corresponding excise duty on such capacity. 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 v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeared on behalf of the respondents on 27.09.2013, 08.11.2013, 03.01.2014, and 21.02.2014 when the case was fixed for hearing. 3. Heard Dr. J. Nagori (A.R.) on the matter wherein it was informed that the same issue has now also been decided by the jurisdictional High Court in the case of Premraj Dyeing Printing Mills Pvt. Ltd. Vs UoI [2013 (288) ELT 357 (Guj.)]. 4. After hearing A.R. and perusal of the case records it is observed that the issue involved in the present proceeding is whether respondent could file a refund claim of excess duty paid when Annual Production Capacity fixed by the Revenue under Hot Air Stenter Independent Processors Annual Capacity Determination Rules 1998, has not been challenged. It is further observed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t thereof which tends to change any of the parameters referred to in Rule 4 and requires him to intimate about such change to the concerned excise authority. 15. From the above set of Rules, it can be seen that the entire exercise of determination of annual production capacity is to be made by the competent authority, that is, the Deputy Commissioner or the Assistant Commissioner, as the case may be. At a such stage, no hearing of the independent processor is envisaged. Such determination is to be made on the basis of declaration made by the processor with the aid of the expert advice, if so found necessary. Such determination and inquiry can be on provisional basis, but would be followed by final determination as soon as possible therea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exercise undertaken by the prescribed authority of determining the Annual Production Capacity and other related issues. The appeal envisaged under Section 35 of the Act would necessarily be against quasi-judicial order that the competent authority may pass under the Act deciding the list between the parties. In our view, therefore, mere determination of an Annual Production Capacity by the prescribed authority 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder the statute and the party aggrieved did not choose to exercise the statutory right of filing an appeal, it is not open 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
