2008 (4) TMI 741

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....CE v. SPBL reported in 2002 (146) E.L.T. 254. 3. The brief facts of the case are that the respondents were engaged in the processing of man-made compounded fabric and paying the duty under Section 3A of Central Excise Act. The respondents filed a declaration for fixation of their annual capacity of their hot air stenter under Section 3A of Central Excise Act and the Commissioner of Central Excise vide order dated 29-3-99 fixed the annual capacity of the hot air stenters of the respondents. The respondents paid duty accordingly, under protest. Thereafter, the respondent filed a refund claim on 20-7-2000 on the ground that the length of galleries were not to be taken into consideration while fixing annual capacity of the stenters. The....

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....ot air stenter as per the provisions of Section 3A of Central Excise Act is an appealable order, but appellant had not filed any appeal challenging the order. Thereafter, appellant paid duty accordingly. Subsequently, the appellant filed refund claim on the ground that length of galleries were not to be taken into consideration while fixing the capacity of the stenters. The appellant relied upon the decision of Hon'ble Bombay High Court in the case of Om Textile Pvt. Ltd. (supra) which was followed by the Tribunal. The facts of that case are different from the facts of the present case. In the case of Om Textile Pvt. Ltd. (supra), the annual capacity of the stenter was fixed and subsequently consequential demand were raised which were objec....

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....d there is little scope for doubt that in a case where an adjudicating authority has passed an order which is appealable 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. If this position is accepted then the provisions  for  adjudication  in  the  Act  and  the  Rules,  the  provision  for appeal in the Act and the Rules will lose their relevance and the entire exercise will be rendered redundant. T....