9911796707
TMI Blog2012 (5) TMI 225X X X X Extracts X X X X X X X X Extracts X X X X ..... he order passed by the lower adjudicating authority vide order dated 24/11/2003. 2. Briefly stated the facts of the case are as follows:- 2.1 The appellants are engaged in the processing of fabrics and they had opted for the compounded levy scheme for textile fabrics with effect from 16/12/1998 under Section 3A of the Central Excise Act,1944. As per the said scheme their capacity of production was provisionally determined at 10.61 chambers for the two stenters in their licensed premises vide the provisional capacity fixation order dated 03/11/99.The appellant was directed to pay the duty on that basis, which was paid by them under protest for the period from March 99 to December 99. Subsequently, the matter was considered by the Com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er of Central Excise vide order dated February 2001 and also on the ground that the claim was barred by limitation of time. 2.4 The appellant went in appeal against the said order before the Commissioner (Appeals) and the impugned order was passed, upholding the Deputy Commissioner's order and rejecting the refund claim. 3. The Counsel for the appellant submits that the correct position of law as regards the determination of capacity of production was settled by the Hon'ble Supreme Court only vide their judgement in the case of CCE Vs.SPBL Ltd., reported in 2002 (146) ELT 254 (SC) and only thereafter they could have filed the refund claim. During the material time they had paid duty under protest and, therefore, the refund s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ein had challenged the correctness of the order whereunder the determination of annual capacity of production was made. In the instant case, the annual capacity of production was finally determined vide order dated February 2001 which has not been challenged and which was accepted by the appellants and the assessments were also finalized. Accordingly, the facts of clearly distinguishable. In asmuch as the final determination of the annual capacity of production was not challenged and consequent duty payments were also not made under protest, the limitation of time prescribed under Section 11B for filing of the refund claim would apply. From that perceptive, the refund claim by the appellant in the instant case is clearly time-barred. As reg ..... X X X X Extracts X X X X X X X X Extracts X X X X
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