TaxTMI 
TaxTMI 
2010 (9) TMI 1012
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.... Flock India Pvt. Ltd. reported in 2000 (120) E.L.T. 285 (S.C.). 2. The facts of the case are that the appellant has wrongly debited the excess duty in their PLA Account and accordingly they filed their ER.1 return. After realizing that the appellant has occurred a mistake by debiting excess duty in their PLA Account, they filed a refund claim of the excess duty paid by them along with the certificate issued by the Chartered Accountant that the claim of the appellant is not hit by bar of unjust enrichment. But, the lower authorities rejected the refund claim of the appellant holding that once the ER.1 returns has been filed, without challenging the same, appellant cannot claim the refund of excess duty paid by them. Aggrieved from the....
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....submitted that in the case of Flock India Ltd. the Hon'ble Apex Court has clearly held that without challenging the assessment, refund claim is not maintainable. He further submitted that the Apex Court in the case of Mafatlal Industries Ltd. v. Union of India reported in 1997 (89) E.L.T. 247 (S.C.) also held that once duty has been recovered from the buyers same cannot be refunded to the assessee. Hence, the lower authorities has rightly rejected the refund claim filed by the appellants. 5. Heard both sides. 6. On careful examination of the submissions made by both the sides, I find that it is a case where the appellants have filed their ER.1 return regularly and after realizing that they have paid excess duty, they filed the r....
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....tral Excise officer which was communicated to the appellants. While granting stay to the appellants, this Tribunal has also observed that an appeal under Section 35 of the Central Excise Act should be preferred to the Commissioner (Appeals) against the order passed or decision taken by the Central Excise Officer or sub-ordinate to him. It is difficult to envisage that the said provision of law provides for an appeal against the self assessment. In the case of Gimatex Industries Pvt. Ltd. (supra) this Tribunal has held that the proposition that "assessment" includes "self assessment" is not correct for the purpose of appeal under Section 35F of the Central Excise Act, 1944. In this case also neither any decision nor any order of the Central ....