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Commissioner, C. Ex. & S. Tax, Surat Versus M/s Rita Dyeing & Printing Mills Pvt. Ltd.

2016 (8) TMI 489 - CESTAT AHMEDABAD

Refund claim - rejected on the ground that assessment order/determination of annual capacity of production was not challenged before the appropriate forumduty paid under protest - inclusion of gallery in the length of chambers for determination of annual production capacity - Held that:- the issue is no more res integra and is squarely covered by the judgment of jurisdictional Hon'ble Gujarat High Court in the case of Premraj Dyeing & Printing Mills Pvt. Ltd Vs UoI [2013 (6) TMI 118 - GUJARAT HI .....

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e ORDER Per Dr. D. M. Misra Heard both sides and perused the records. 2. This is an appeal filed against the OIA No.RKA/381/SRT-I/08, dt.11.04.2008, passed by Commissioner (Appeals), C.Ex. & S.Tax, Surat-I. 3. Briefly stated the facts of the case are that the Appellant are engaged in the manufacture of processed man made fabrics with the aid of Hot Air Stenter and discharging duty under Compounded Levy Scheme notified under Section 3A of Central Excise Act, 1944. The annual capacity of produ .....

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wara Vs CCE 2001 (127) ELT 679 (Tri-LB), where under it has been held that inclusion of gallery in the length of chambers is incorrect, which was approved by the Hon'ble Supreme Court in CCE, Jaipur-II Vs S.P.B.L. Ltd 2002 (146) ELT 254 (SC). Consequently, the Appellant filed the refund claim as the duty was paid under protest. The refund claim was rejected on the ground that the assessment order/determination of annual capacity of production was not challenged before the appropriate forum. .....

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ind that the issue is no more res integra being covered by the judgment of Hon'ble Gujarat High Court in Premraj Dyeing & Printing Mills Pvt. Ltds case, wherein their Lordships have observed as:- 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 were included while determining the Annual Production Capacity and as s .....

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as well as the Tribunal erred in rejecting such claims merely on the ground that the determination of Annual Production Capacity was not challenged. The decisions of the Apex Court in case of Mafatlal Industries (supra) as well as Collector v. Flock (India) Pvt. Ltd. (supra) would not apply. In case of Mafatlal Industries, the Apex Court ruled that an assessee cannot claim refund that too after the indefinite period of time on the strength of decision in case of another assessee. In Collector v .....

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