TaxTMI 
TaxTMI 
2014 (3) TMI 51
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....tive of non-challenge of Annual Production Capacity fixed. Respondent in their cross objection No. E/Co/08/2008 filed on 01.02.2008 argued that adjudicating authority has not decided the case in view of the remand order of the first appellate authority and that the appeal filed by the Revenue should be dismissed as the issue now stands decided in favour of the respondent. 2. None appeared on behalf of the respondents on 27.09.2013, 08.11.2013, 03.01.2014, and 21.02.2014 when the case was fixed for hearing. 3. Heard Dr. J. Nagori (A.R.) on the matter wherein it was informed that the same issue has now also been decided by the jurisdictional High Court in the case of Premraj Dyeing & Printing Mills Pvt. Ltd. Vs UoI [2013 (288) ELT 357 (....
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.... of production on a provisional basis pending verification of the declaration furnished by the independent processor and pass an order accordingly and thereafter, determine the annual capacity, as soon as may be, and pass an order accordingly. 14.5 Rule 5 provides for changes in parameters for capacity determination and covers the cases where independent processor proposes to make any change in the installed machinery or any part thereof which tends to change any of the parameters referred to in Rule 4 and requires him to intimate about such change to the concerned excise authority. 15. From the above set of Rules, it can be seen that the entire exercise of determination of annual production capacity is to be made by the competent aut....
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....rom the tenor of the Rules, the provisions made thereunder and the nature of exercise envisaged for determination of Annual Production Capacity, on the basis of the declaration made by the independent processor and if found necessary with the aid of consultation of the technical expert, it becomes clear that the determination which is arrived at cannot be termed as a judicial or even a quasi-judicial order. It is an administrative exercise undertaken by the prescribed authority of determining the Annual Production Capacity and other related issues. The appeal envisaged under Section 35 of the Act would necessarily be against quasi-judicial order that the competent authority may pass under the Act deciding the list between the parties. In ou....
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....ector v. Flock (India) Pvt. Ltd. (supra), it was a case where classification of a product was the controversy. The Assistant Collector passed an order of such classification. Such order though appealable, was not challenged by the assessee. The assessee, however, filed a refund claim. The Apex Court observed that 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 subsequently by filing a claim for refund on the ground that the adjudicating authority had committed an er....