2010 (2) TMI 1034

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.... while making payment of monthly duty for the month of July, 2006, the appellant calculated the total duty liability, which included the duty debited against the clearance for home consumption as well as duty already debited on the above mentioned clearance for export. The duty calculated on the clearances for home consumption actually worked out to BED Rs. 27,64,781/- & Ed. Cess Rs. 55,301/-, whereas the appellant erroneously debited the duty for the month of July, 2006 on 31-7-2006, amounting to Rs. 31,95,113/- BED + Rs. 38,311/- Ed. Cess through Cenvat Credit Account and Rs. 20,000/- + Rs. 5597/- through PLA, which also included the duty amounting to Rs. 4,30,332/- BED and Rs. 8,607/- Ed. Cess making the total amount of Rs. 4,38,939/- pe....

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....e not applicable in this case and prayed that the impugned order be set aside. To support his contention, he placed reliance on the following decisions: - (i)     Hindustan Motors v. CCE, Kolkata-IV - 2008 (228) E.L.T. 133 (Tri.-Kol.). (ii)   Central Office Mewar Palaces Org. v. Union of India - 2008 (12) S.T.R. 545 (Raj.). (iii)   Commissioner of Central Excise, Nagpur v. Repol Plastics Ltd. - 2009 (14) S.T.R. 837 (Tri.-Mum.). (iv)   Commissioner of Central Excise, Nagpur v. Noble Grain India Pvt. Ltd. - 2009-TIOL-667-CESTAT-MUM = 2009 (14) S.T.R. 617 (Tri.-Mumbai). 4. On the other hand, the learned DR submitted that as per the provisions of the Section 35 of the Central....

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....der this Act by a Central Excise Officer, lower in rank than a (Commissioner of Central Excise), may appeal to the [Commissioner of Central Excise (Appeals)]. The learned DR submits that in this case, the appellant himself filed assessed their duty liability and filed a RT-12 accordingly and the same was accepted by the concerned officer and the said order was not challenged by the appellant and following the law laid down by the Hon'ble Apex Court in the case of Flock (India) Ltd. (supra) and Priya Blue Indus. (supra), the refund claim is not maintainable. The contentions of the learned SDR are not accepted in this case. In the case of Flock (India) Ltd. (supra), the facts of the case are that "the respondent filed the classification list,....

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....though the facts and circumstances of the case, I find that it is a case of double payment made by the appellant and as per the provisions of Central Excise Laws every clearance has the assessment and while making double duty payment, it is the duty of the Central Excise officers to examine the case and pass the proper order. In this case, neither any decision of the Central Excise officers nor any order of the Central Excise Officers is available. Hence, challenging of the same does not arise at all Further, in the case of Nagpur Transwell Power Pvt. Ltd. v. Commissioner of Central Excise, Nagpur - 2009 (243) E.L.T. 459 (Tri.-Mum.), while disposing of the stay application this Tribunal has clearly held that proposition that "assessment" in....