2009 (8) TMI 542

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....or short) in respect of the assessee was determined by the Commissioner on 29-3-1999. The respondent paid duty as per annual production capacity but subsequently filed a refund claim on the ground that the length of galleries should not have been included while determining the annual production capacity. The refund claim was rejected by the original adjudicating authority but allowed by the Commissioner (Appeals) relying upon the decision of the Hon'ble Supreme Court in the case of CCE, Jaipur-II v. SPBL Ltd. reported in 2002 (146) E.L.T. 254 (S.C.). The Hon'ble Supreme Court had observed that the length of galleries need not be included for the purpose of determination of annual production capacity. Against this order of the Commissioner (....

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.... protest once an order has been passed and an appealable order cannot be challenged by filing a refund claim. He submits that the amendments made in the Rules in 2000 are only prospective and therefore are not applicable to the assessee. However, he also submits that if the refund claim is required to be considered the aspect of unjust enrichment is also required to be considered and the Commissioner (Appeals) has not taken this aspect. 4. The respondents have also filed cross-objection and on behalf of the respondents it was submitted by the learned Counsel that in their letter dated 22-4-99 while intimating they had submitted that they are paying duty under protest. Thereafter a refund claim, a show cause notice was issued and in reply....

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....e have considered the submissions made by both sides. 7. In this case, the respondents have paid differential duty under protest after determining APC. The respondents failed to file appeal against the order of the Commissioner (Appeals). The question that has to be determined is when they have not filed the appeal they are not entitled to refund or not. In the case of Om Textile Pvt. Ltd., the facts were also similar, but the difference was only that in Om Textile Pvt. Ltd. case, the assessee had not paid duty as per APC including galleries based on the order fixing APC. A show cause notice was issued and demand was confirmed against the assessee, the issue went upto the Hon'ble Bombay High Court and the same was determined in favour of....