MOHAN CRYSTAL GLASS WORKS Vs. CCE

JUDGEMENT

(1.) THIS is an appeal at the instance of the assessee challenging the order passed by the Commissioner (Appeals) dated 13,2.2003 rejecting the claim for refund of an amount of Rs. 15,00,000 deposited as pre -deposit and Rs. 3,35,026 deposited towards duty.

(2.) THE appellants are engaged in the manufacture of glass bottles. For the period 1982 -83 to 1987 -88 provisional assessments were made pending approval of assessable value. Under order dated 22.6.90 the Assistant Collector of Central Excise, Division III finalized provisional assessment demanding differential duty of about Rs. 22.46 lakhs. The assessee filed an appeal and application for stay before the Commissioner (Appeals) who by order dated 12,4,91 directed pre -deposit of Rs. 15 lakhs the assessee complied with the order. On 25.11.92 the Commissioner (Appeals) disposed of the appeal setting aside the order in original and remanding the matter for re -adjudication. By order dated 21.1.94 the Assistant Commissioner passed fresh order confirming demand of Rs. 1,05,74,371. Aggrieved by the above, the assessee filed an appeal and application for stay before the Commissioner (Appeals) who allowed the appeal on 29.7.94 setting aside the order in original Appeal filed by the Revenue before this Tribunal was dismissed on 14.10.95 and the Special Leave Petition was also dismissed by the Supreme Court dated. 27.1.97.

(3.) IT is contended on behalf of the appellant that the order impugned cannot be sustained for any of the reasons mentioned therein. Relying on the decision of the Apex Court in Mafatlal Ind. Ltd. v. UOI, 2002 (83) ECC 85 (SC) : : 1997(89) ELT 247 (SC) on which the Commissioner (Appeals) also placed reliance the appellant would contend that any amount deposited towards duty provisionally during the provisional assessment proceedings will not be governed by Section 11 -A or 11 -B. The refund of Rs. 15 lakhs as pre -deposit was denied to assessee on the ground that the Assistant Commissioner vide order dated 22.3.94 after the remand by the Commissioner (Appeals) had adjusted the amount of duty towards duty demand. The learned counsel for the appellant points out that the above order dated 22.3.94 was set aside by the Commissioner (Appeals) by his order dated 29.7.94 which was later affirmed by this Tribunal as well as the Supreme Court. Under these circumstances, the pre -deposit continues to be pre -deposit which is liable to be refunded. It is also submitted that the order dated 22.3.94 rejecting the claim for refund of pre -deposit will have no legs to stand once the original order dated 24.1.94 under which the pre -deposit was treated as payment towards duty was set aside by the Commissioner (Appeals) on 29.7.94. Therefore, there was no need for challenging the order dated 22.3.94 independently. The ratio of the decision of the Supreme Court in CCE, Kanpur v. Flock (India) Pvt. Ltd., 2000 (71) ECC 4 (SC) : : 2000 (120) ELT 285 (SC) will not be applicable in the facts of this case. The learned DR placed contentions to support the order impugned following the reasoning contained in the order.