9911796707
TMI Blog2008 (9) TMI 313X X X X Extracts X X X X X X X X Extracts X X X X ..... cles of iron and steel of Chapter heading 7326.90. The respondents were doing job work for Gujarat Electricity Board, while doing so, they had not added the cost of raw materials for the purpose of arriving at assessable value but had taken only job work charges. Accordingly, show cause notice was issued demanding differential duty for the period from 1993-94 to 1997-98 and for the year 1998-99 on 23-2-99 and 31-8-99 respectively. The demand was confirmed by the original adjudicating authority, respondents went in appeal and appeals were dismissed for non-compliance with the condition of stay. The appeal filed by respondents against this order of the Commissioner (Appeals) resulted in remand of the issue to Commissioner who, finally decided ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is not orders passed by the Commissioner (Appeals) in respect of other two show cause notices but what is relevant is the fact that the order in original which culminated into total liability of Rs. 4,26,976/- which has attained finality since respondents have not filed any appeal against the order in appeal dismissing their appeal on the ground of limitation. He also cited several judgments in support of this argument. Larger Bench of this Tribunal in the case of C.C.(Imp), Nhava Sheva v. M/s. Eurotex Industries & Exports Ltd. reported in [2007 (216) E.L.T. 137 (Tribunal -LB) 2007-TIOL-1184-CESTAT-Mum] held that refund claim is not maintainable unless assessment order in pursuance of the duty paid is challenged and modified/set aside. He ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in compliance of the OIO is as per law and not as per wish of the department, hence it cannot be said that duty deposited was under protest in this case Shri B.K. Trivedi, Advocate on behalf of the respondents submitted that the final order passed by the Commissioner (Appeals) relates to the period for 1993-94 to 1998-99 whereas refund claim which has been made by them relates to the period subsequent to the same. Therefore, if the appeal filed by the respondents is allowed, it will result in an anomalous situation in the sense that some goods are non-dutiable for the period from 1993-94 to 1998-99, become dutiable subsequently, even though there is absolutely no change in the circumstances. He admitted that no appeal has been filed by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sidered the submissions made by both the parties. Learned SDR has cited several judgments of Larger Bench as well as Hon'ble Supreme Court in support of his contention that once the order in original attains finality, the consequences have to be taken. It is the mistake on the part of the respondents who did not file appeal in time before the Commissioner and who did not file appeal before the Tribunal when the Commissioner rejected the appeal filed by them on the ground of limitation. Once the order in original has attained finality duty paid consequent to the order in original cannot be claimed as refund which would result in adjudication of the same issue which has already attained finality. We find that the judgment and the decisions ci ..... X X X X Extracts X X X X X X X X Extracts X X X X
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