2009 (2) TMI 564

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....Agarwal, SDR, for the Respondent. [Order]. -  This appeal has been filed by M/s. Hindustan Hardy Spicers Limited, Nasik (the appellants herein) against the Order-in-Appeal dated 30-10-2007 passed by the Commissioner (Appeals), Central Excise and Customs, Nasik. The Commissioner (Appeals), vide the impugned order, has upheld the Order-in-Original dated 16-3-2007 passed by the Assistant C....

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....l in the case of M/s. Rocket Engg. Corp. Ltd. v. CCE, Pune-II reported in 2006 (193) E.L.T. 33 (Tri.-Mumbai) in which it was held that the duty is not payable on such scrap. Show cause notice was issued on 27-4-2006 and the case was adjudicated in the above manner and confirmed by the Commissioner (Appeals). 5. I extract below the grounds, on which the Commissioner (Appeals) has upheld the....

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.... 145 (S.C.)] and Next Generation Business Power System v. CCE [2007 (208) E.L.T. 274 (Tri.-Del.)] that once assessment is done, it can only be changed by a competent appellant authority through the process of filing appeal; filing a refund claim in contradiction to what has been assessed (and not modified by the competent authority) cannot be entertained. The adjudicating authority is right in ref....

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....a decision of a Court or Tribunal in the case of another person. It was further observed by the Supreme Court that a person, whether a manufacturer or importer, must fight his own battle and must succeed or fail in such proceedings. It was also held by the Supreme Court that once assessment of levy has become final in his case, he cannot seek to reopen it nor can he claim refund without re-opening....