TaxTMI 
TaxTMI 
2010 (8) TMI 737
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....onfirmed. Being aggrieved, the appellants have filed the present appeal. 3. The appellants are the manufacturers of processed Cotton and Man Made Fabrics classifiable under Chapter 52, 54 and 55 respectively of the Central Excise Tariff Act, 1985. Under Notification No. 41/98-C.E. (N.T.), dated 16-12-98 the processed textile fabrics manufactured with the aid of hot air stenter were specified as the notified goods on which the duty of excise was to be levied and collected in accordance with the provisions of the Section 3 A of the Central Excise Act, 1944. The appellants, therefore, filed the declaration dated 15-12-98 under Rule 3(1) of the Hot Air Stenter Independent Textile Processors Annual Capacity Determination Rules, 1998 and the Commissioner by his order dated 22-12-98 determined the annual production capacity of the appellants w.e.f. 16-12-98 to be Rs. 1547.04 lakhs per annum and consequently Rs. 16.50 lakhs per month being the duty liability. The said provisional order was confirmed by order dated 10-2-99. However, on re-verification of the data furnished under declaration dated 15-12-98 by the appellants, it was observed that the galleries equal to 0.61 chamber in....
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....d the proceedings on the basis of the decision of the CEGAT confirmed by the Apex Court in the matter of S.P.B.L. case. Being aggrieved, the department carried the matter in appeal before the Commissioner (Appeals) which was allowed by the Commissioner (Appeals) Jaipur by the impugned order. The Commissioner (Appeals) has held that the dismissal as withdrawn of the writ petition filed by the appellants against the order of the adjudicating authority including the length of galleries for the purpose of assessment and determination of the duty liability has resulted in giving finality to the order passed by the Commissioner on 5-10-99 and, therefore, the appellants are liable to pay the short duty paid in terms of the show cause notice. 4. Learned Advocate for the appellants placing reliance in the decision of the Apex Court in the matter of S.P.B.L., of the Tribunal in the matter of CCE, Kanpur v. Premium Suiting Pvt. Ltd. reported in 2010 (96) RLT ONLINE 134 (CESTAT-DEL.), of the Bombay High Court in the matter of Om Textile Pvt. Ltd. v. CCE, Belapur Navi Mumbai reported in 2006 (74) RLT 233 (Bom.), of the Delhi High Court in the matter of Aman Medical Products Ltd. v. Comm....
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....the statute and not otherwise. Failure in that regard cannot entitle the assessee to dispute the liability arising under such order, while contesting some other proceedings including the execution proceedings of such order. Being so, according to the DR since the order dated 5-10-99 deciding the duty liability of the appellants having not been challenged by way of appeal and the writ petition which was filed against the same having been dismissed as withdrawn, it is not open to the appellants to dispute the liability of the appellants arising under the said order dated 5-10-99. 6. Referring to the decision of the Bombay High Court in Om Textile Pvt. Ltd. it was sought to be contended on behalf of the department that same was in the facts of the case and does not lay down any proposition of law that in the absence of challenge to the assessment order, the duty liability arising under such order can be disputed in any other proceedings. The contention is sought to be countered on behalf of the appellants by referring to the decision of the Delhi High Court in the matter of Aman Medical Products and of the Apex Court in Lajya Dyeing & Bleaching Works case. 7. The facts....
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....to that of to the appellants cannot be disputed. Equally the learned Advocate for the appellants is right in contending that the decision being of clarificatory in nature, it will have retrospective effect. The decision of the Apex Court in S.P.B.L. and of the Tribunal in Premium Suiting Pvt. Ltd. case are very clear in that regard. 9. It is, however, to be noted that as far as the case of the appellants is concerned, the same was decided much prior to the decision of the Apex Court, and the said decision was not challenged by way of appeal, though the order was appealable under the said Act. At the same time, the writ petition filed against the said order was dismissed as withdrawn. According to the DR, therefore, in the appellants' case, the issue stood finally decided in terms of order dated 5-10-99 and hence the duty liability arising thereunder could not be disputed by the appellants, except during the period till the stay order by the Rajasthan High Court was in force. In view of dismissal of writ petition, in any case, the stay stood vacated. 10. As already observed above, the point is sought to be made good by referring to the decision of the Apex Court in F....
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....is of length of gallery contrary to the law laid down by the Apex Court in S.P.B.L. case and merely on the ground that the order dated 12th July 1999 had attained finality. In other words, the decision was on the basis that the order dated 12th July 1999 was not an appealable order and there were no challenge thrown to the said order in any independent or substantive proceedings and in those circumstances the authorities below including the Tribunal could not have ignored the decision of the Apex Court in S.P.B.L. case for confirming the demand. 13. In Aman Medical Products case, in para 5 of the decision to which attention was drawn, it was held thus:- "The Tribunal has referred to the cases of CCE, Kanpur v. Flock (India) Pvt. Ltd.,[2000 (129) E.L.T. 285] and Priya Blue Industries Ltd. v. Commissioner of Customs (Preventive), 2004 (172) E.L.T. 145 (S.C.). In both these cases, referred to by the Tribunal there was an assessment order which was passed and consequently it was held that where an adjudicating authority passed an order which is appealable and the party did not chose to exercise the statutory right of appeal, it is not open to the party to question the correc....
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....etition. However, those grounds were not pressed. We have, therefore, not looked into these aspects and express no opinion thereon". 17. The ratio of the decision of the Apex Court is to the effect that even though there is a challenge to an order before the Court, but when the matter comes for hearing certain grounds of challenge are given up and not pressed for, the ultimate order which is delivered does not amount to expression of any opinion or decision on those grounds which were not pressed for. We fail to understand the applicability of this decision in the matter in hand. 18. In Flock (India) Pvt. Ltd. case, the Apex Court had held that in a case where an adjudicating authority has passed an order which is appealable under the statute, but the party aggrieved by such order does not choose to exercise the statutory right of filing an appeal, it is not open to the party to question the correctness of such 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 its order. It was observed that if such position is not accepted, then the provisions for adjudicatio....
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....at unless an appealable speaking order is passed, the importer cannot file an appeal against the assessment order is without any merit. Assessment order passed on the bill of entry is an appealable order and the same can be challenged even in the absence of a speaking order. In other words, in the absence of a speaking order, it cannot be said that the assessment order is not appealable. Where an assessment order is passed without giving reasons and in spite of repeated requests reasoned order is not passed, proceedings can be initiated for setting aside the assessment order passed on the bill of entry. In the present case, save and accept writing letters no proceedings have been initiated for setting aside the assessment order. Therefore, the fact that the assessing officer has not passed a speaking order would not entitle the appellant to claim partial refund of duty paid as per the assessment order". 21. The Larger Bench of the Tribunal in Eurotex Indus. & Exports case after taking note of the decision of the Apex Court in Flock (India) Pvt. Ltd., and Priya Blue Industries Ltd. v. Commissioner reported in 2004 (172) E.L.T. 145 (S.C.) held that the refund claim is not mai....
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....9 was not appealable and it could be challenged only by way of independent and substantive proceedings. In that respect, it was observed that the objection to the correctness could have been raised in the proceedings initiated for recovery of the duty. With utmost respect the observations are contrary to the rulings by the Apex Court in Flock (India) case. It has been specifically held in Flock (India) case and at the cost of repetition, we may reproduce relevant portion which reads : "The provisions indicates the importance attached to an order of the appellate or revisional authority under the Act therefore, an order which is appealable under the Act is not challenged then the order is not liable to be questioned and the matter is not to be reopened in a proceeding for refund which if we may term it so is in the nature of execution of a decree/order". In other words in the proceedings in the nature of execution of an order question of challenging the correctness of the findings in the main order does not arise. In fact, that is the law laid down by the Apex Court in plethora of decision delivered from 1969 onwards.          &em....