UNIVERSAL CABLES LTD. Vs. COMMISSIONER OF CENTRAL EXCISE

JUDGEMENT

(1.) These appeals at the instance of the assessee arise out of a common order passed by the Commissioner of Central Excise (Appeals) vide order -in -appeal No. 299 -233 -C.E./BPL/2002, dated 28 -2 -2002. The issue raised in these appeals is whether the appellant is entitled to claim refund in respect of duty paid against demands confirmed under orders -in -original passed by the adjudicating authority which are not appealed against. According to the appellant, it had challenged order -in -original passed for a different period where identical issue was raised and it was decided in its favour by the Tribunal under order dated 12 -9 -97. Therefore, it is contended that it is entitled to refund in respect of duty paid for different periods which were affirmed by the adjudicating authority under separate orders -in -original.

(2.) In support of the above contention, the learned counsel for the appellant placed reliance on a decision of a learned Single Member of the Tribunal in Samurai Electronics Pvt. Ltd. v. CCE, Jaipur - 1998 (97) E.L.T. 85 (T). He also placed reliance on the decision of the Supreme Court in Mafatlal Industries Ltd. v. UOI - 1997 (89) E.L.T. 247.

(3.) The learned DR would submit that so long as the appellant had not challenged the orders of the adjudicating authority affirming the duty demand for the period covered by those orders, it cannot claim refund of the duty paid which were the subject matter of those orders. It was also contended that interpretation given by the learned Single Member to Rule 233B of the Central Excise Rules, 1944 in Samurai Electronics Pvt. Ltd. is not correct. On the other hand, if the dictum laid down by the Supreme Court in Collector of Central Excise v. Flock India Pvt. Ltd. - 2000 (120) E.L.T. 285 (S.C.) is applied so long as the order confirming the demand is not got set aside, no claim for refund would be sustained. Learned DR pointed out that decision of the Supreme Court in Mafatlal Industries Ltd. is also of no help in the facts of the case. Rule 233B reads as follows : -