TMI Blog2007 (11) TMI 366X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the learned Counsel for the assessee that there was no adjudication of the duty payable by the original authority, when the original authority has passed an order to appropriate the amount of Rs. 9,70,524/- and imposed a penalty of Rs. 1,000/-, it was for the assessee to challenge the order of appropriation. - Revenue is justified in contending that the refund claim of the assessee was not maintainable. Therefore, we are of the opinion that the Tribunal was not justified in allowing the appeal of the assessee in directing the Revenue to refund the amount which was already appropriated in the original proceedings. - 91 of 2006 - - - Dated:- 22-11-2007 - K.L. Manjunath and N. Ananda, JJ. Shri Shivaprabhu S. Hiremath, Advocate, fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the course of investigation. The refund claim of the assessee was rejected relying upon the order passed by the Deputy Commissioner of Central Excise, Bellary, dated 29-11-2001 wherein there was an order of appropriation of the said amount and it was further held by the Assistant Commissioner that the amount was not deposited under protest and it was a voluntary payment and the refund application filed by assessee was beyond one year and was barred by time. 4. Against the order passed by the Adjudicating Authority, an appeal was preferred before Commissioner of Central Excise (Appeals), Mangalore, in Appeal No. 61/2004 (C.E.) which appeal also came to be dismissed on 21-2-2004. Being aggrieved by the concurrent findings of the authori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le an application for refund of the amount on the ground that there was no adjudication of the duty payable by the assessee is the question to be determined in this appeal. 6. Even if we accept the contention raised by the learned Counsel for the assessee that there was no adjudication of the duty payable by the original authority, when the original authority has passed an order to appropriate the amount of Rs. 9,70,524/- and imposed a penalty of Rs. 1,000/-, it was for the assessee to challenge the order of appropriation. When it is not challenged, according to us, the same has become final and conclusive. Even if the order passed by the Deputy Commissioner of Central Excise, Bellary, was erroneous the assessee could not have ignored the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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