2004 (2) TMI 224

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....ppeals) took the view that since the appellants in the above mentioned Civil Appeals was M/s Andhra Asbestos Corporation Ltd. and that since the assessees who are appellants before him were successor-in-interest of the mines and machinery used by M/s. Andhra Asbestos Corporation Ltd. for mining and processing of asbestos fibre the assessee-appellant before him can take the benefit of the decision of the Hon'ble Supreme Court that the process of separating asbestos fibre from asbestos rock is not manufacturing process and, therefore, there is no duty liability attached to the process. The refund application submitted by the respondent-herein were rejected by the Assistant Commissioner on the ground of limitation prescribed under Section 11B ....

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....poration filed civil appeal before the Hon'ble Supreme Court in their capacity as manufacturer challenging the duty demand against the Corporation. The respondent herein has paid duty on a demand made against them as manufacturers. Therefore the Revenue is fully justified in relying on the decision of the Hon'ble Supreme Court to contend that unless the demand against the respondent was challenged by them before appropriate authority they cannot claim refund of the duty paid even if it is accepted that the duty was paid under protest. In Paragraph 70 of the judgment in Mafatlal Industries Ltd. v. Union of India the Hon'ble Supreme Court has observed as follows : "We may now consider a situation where a manufacturer pays a duty unquestion....

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.... duty has been collected under a particular order which has become final, the refund of that duty cannot be claimed unless the order (whether it is an order of assessment, adjudication or any other order under which the duty is paid) is set aside according to law." In CCE, Kanpur v. Flock (India) Pvt. Ltd. - 2000 (120) E.L.T. 285 also the Hon'ble Supreme Court took the view that earlier adjudication order determining classification of goods not challenged despite being appealable cannot be questioned by filing refund claim on the ground that adjudicating authority has committed an error in passing earlier order. 5. In the light of the above authoritative pronouncement of the Hon'ble Supreme Court, we find no merit in the contention ra....