TaxTMI 
TaxTMI 
2011 (3) TMI 1129
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....assed by the Commissioner (Appeals) rejecting the appeals file by the appellants against the orders passed by the original authority dismissing the claim for refund. The orders sought to be challenged are order dated 13.08.2005 and dated 28.09.2004 passed by the Commissioner (Appeals), Jalandhar. By the said orders the original orders dated 28.02.2005 and 15.06.2004 have been dismissed. 3. The refund claim filed by the appellants has been rejected on four counts, namely that the claim of the appellants that the product was non-dutiable was not correct, the appellants were not entitled for exemption under Notification No. 74/93-CE dated 28.02.1993, the appellants had not discharged the burden of proof in relation to non passing of the bur....
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....ich 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. This position in our view, will run counter to the scheme of the Act and will introduce an element of uncertainty in the entire process of levy and collection of excise d....
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....s proceeding. The refund proceedings are nothing but miscellaneous proceedings which are in the form of execution prosecution of a decree of a Civil Court. Such an issue is always to be adjudicated upon in the main proceedings. This is being settled law, it was not permissible for the appellants to raise in the refund proceedings the issue of non-dutiability of the product on the ground that the process did not amount to manufacture. Law in this regard is well settled by the decision of the Apex Court in Flock (India) Pvt. Limited (supra). 5. The next ground of challenge relates to the claim of exemption benefit under Notification No. 74/93-CE dated 28.02.1993. Undisputedly, apart from claiming that the appellants is a factory belonging ....
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....n is sought to be claimed and not after the expiry of the period. It is sought to be contended that in reply to the show cause notice, the appellants had submitted that the product manufactured by them was captively consumed and in that connection attention was drawn to the relevant statement in the reply to the show cause notice. The said statement reads thus:- "It is submitted that items fabricated are not to be sold in the course of wholesale trade but are used entirely for captive consumption. The material fabricated in our workshop are issued to the Central Stores of PSEB under duty paid invoice from where they are further issued to operation divisions in numbers only". The statement nowhere discloses that the disbursement of the....