TaxTMI 
TaxTMI 
2013 (5) TMI 570
X X X X Extracts X X X X
X X X X Extracts X X X X
....e of Collector of Central Excise Vs Ram Body Builders reported in 1997 (94) ELT 442 (SC) held that body built on chassis supplied by the customers are classifiable under Chapter heading 87.07 of the Schedule to the Central Excise Tariff Act, 1985 and covered by SSI Notification No.175/86-CE dt. 1.3.1986. 2.1 The appellant filed a refund application on 18.5.99 for an amount of Rs.16,17,710/- for the period January 1987 to September 1992. The grounds for refund claim are that they were entitled to avail SSI Exemption Notification No.175/86-CE dt.1.3.1986 and paid duty under protest during the material period. 2.2 Show Cause Notice dated 31.3.2000 was issued proposing to reject the refund claim mainly on the grounds, as under :- (a) they had not disputed the classification of Body building on the duty paid chassis during the relevant period and had not claimed the benefit of SSI Exemption Notification No.175/86-CE dt. 1.3.1986. (b) they have not followed the procedures as prescribed under Rule 233B of the Central Excise Rules, 1944 for payment of duty under protest (c) the refund ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....bmitted to the Range officer who is part of the office of the Asst. Commissioner, which is substantial compliance of law. 3.1 Regarding the issue of unjust enrichment, he submits that the adjudicating authority proceeded on the basis of payment of commission which was also taken first time in the denovo adjudication order. It is contended that this issue was not alleged in the SCN or even in the earlier adjudication order. He further submits that they have not collected single paise representing duty from the customers and it was reflected in the Profit and Loss Account as expenses. He also submits that the contention of department that payment of duty was made by the customers which is totally wrong. He submits that books of account would show that duty was paid by the assessee and duly mentioned in PLA. 4. Ld. AR reiterates the findings of the Commissioner (Appeals). He further drew the attention of the Bench to several documents from the paper book. Regarding the under protest letter, he submits that the appellant had not submitted any letter of under protest and they could not produce the acknowledgement of letter. He drew the attention of the Bench to page 15 of....
X X X X Extracts X X X X
X X X X Extracts X X X X
....der sub heading 87.04 of the Schedule to the Central Excise Tariff Act, 1985, under protest. In this context, they referred to under protest letter filed on 7.1.1987. The filing of the under protest letter is disputed by the Revenue. According to the Revenue, the appellant had not filed letter of under protest under Rule 233B of Central Excise Rules, 1944 as they failed to produce the original copy of acknowledgement of the letter. But, the appellant claimed that the letter of under protest was filed on 7.1.1987. Without going into controversy of filing of the under protest letter, we find that the matter may be decided on other issues. It is seen from the adjudication order that after filing of the protest letter; the appellant filed the classification lists under Rule 173B of the erstwhile Rules classifying the goods under Heading 87.04 and paid duty, which were duly approved by the competent authority time to time, which is given below :- S.No. Range Sl.No. Date of filing Date of verification by the RO Date of approval by the AC 1. 100/86-87 09.01.1987 01.02.1987 09.02.1987 2. 150/86-87 02.03.1987 &nbs....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... by an assessee is important for the purpose of levy and collection of excise duty. Under Rule 173B every assessee is required to file with the proper officer a list of goods manufactured by him for approval and the proper officer shall after such inquiry as he deems fit approve the list with such modifications as are considered necessary and all clearances are to be made only thereafter. 9. A right of appeal is a creature of the statute. It is a substantive right. An order of the appellate authority is binding on the lower authority who is duty bound to implement the order of the superior authority. Refusal to carry out the direction will amount to denial of justice and destructive of one of the basic principles in the administration of justice based on hierarchy of authorities. 10. Coming to the question that is raised 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 subsequentl....