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TMI Blog2002 (10) TMI 391X X X X Extracts X X X X X X X X Extracts X X X X ..... d sheets and electric insulators; that they were made to pay duty on electric insulator under Chapter 39 of the Schedule to the Central Excise Tariff Act instead of Chapter 85 at lesser rate of duty; that they filed refund claim for refund of duty paid in excess; that the Assistant Commissioner, under Adjudication Order No. 90/Ref/98, dated 31-7-98, rejected both the refund claims treating the product classifiable under Chapter 39 of the Tariff; that the Commissioner (Appeals) has also rejected their appeal under the impugned order. The learned Advocate, further, submitted that the appellants had paid duty on electric insulators under Heading 85.46 during the period from 1-9-90 to 9-10-90; that they paid duty under protest on 9-10-90 under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Court; that the appellants had not challenged the classification of the impugned product made by the Department; that the Commissioner (Appeals) had given a specific finding in the impugned order that "the order of the assessment are still operative and the same have neither been challenged nor set aside by the appellate authority"; that in view of these facts, the ratio of the judgment of the Supreme Court in Flock India case is squarely applicable; that the protest only acts against running of limitation and not against the order itself. 4. We have considered the submissions of both the sides. It is not disputed by the appellants that the classification list in which they have classified the impugned product under Heading 85.46 wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se where an adjudicating authority has passed an order which is appellable under 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 his order." 5. The Supreme Court even observed that "if this position is accepted then the provisions for adjudicating in the Act and the Rules, the provision for appeal in the Act and the Rules will lose their relevance and the entire excise will be rendered redundant." There is no substance in the submission of the learned Advocate th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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