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2018 (11) TMI 1478 - HC - CustomsRefund claim - assessment order not challenged - can the refund application go behind an assessment, which has attained finality? - Whether the revenue could pursue the R.C.P. after participating in the proceedings consequent to the remand order, dated 24/4/2003, passed by the CESTAT? - applicability of Doctrine of merger. Held that:- The Hon'ble Supreme Court, in COLLECTOR OF CENTRAL EXCISE, KANPUR Vs. FLOCK (INDIA) PVT. LTD [2000 (8) TMI 88 - SUPREME COURT OF INDIA], has held that when an order which is appealable, under the Central Excise Act, is not challenged, then, the order is not liable to be questioned and the matter is not to be reopened in a proceeding, for refund. Once an assessee choses not to file an appeal, then, he cannot challenge the same, in a collateral proceedings. In this view, order, dated 4/7/2013, dismissing the Referred Case Petition No.2 of 2012, needs to be reviewed. While setting aside the orders of the assessment authority and the appellate authority, the Tribunal has applied the Doctrine of Merger, which is not applicable to the facts of this case. Tribunal has not stated precisely, as to how, the Doctrine of Merger, is applicable in this case. The Tribunal has not stated, as to which order has merged into which order and as to why the appeal before it was allowed by applying the Doctrine of Merger - The Doctrine of Merger would not apply, even if the order dated 31/3/2004, passed by the Commissioner (Appeals), in order in Appeal No.269 of 2004 was not challenged. Reliance of the respondent on the judgment of the Hon'ble Supreme Court in STATE OF PUNJAB & OTHERS Vs. KRISHAN NIWAS [1997 (3) TMI 622 - SUPREME COURT] is of no assistance and are distinguishable. Appeal allowed.
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