COMMISSIONER OF CENTRAL EXCISE Vs. REPOL PLASTICS LTD.

JUDGEMENT

(1.) HEARD both the sides and perused the records.

(2.) IN the instant case, the sanction of refund of Rs. 4,29,223/ - by the lower authorities by way of re -credit has been objected to by the Revenue on the ground that the self assessment made by the assessee was not appealed against and without a favourable order out of such appeal, no refund can be entertained in terms of the judgment in the cases of CCE v. Flock India Pvt. Ltd. and Priya Blue Industries v. CC (Prev.) .

(3.) I have examined the position. I find that the Tribunal in the case of Central Office Mewar Palace Orgn, Ltd. v. Commissioner of Central Excise, Jaipur reported in, 2006 (4) S.T.R. 192 (Tri. -Del.) has observed that the refund claim was filed challenging the assessment order on the ground that certain services are not covered under the scope of service tax. Relying upon the Hon'ble Supreme Court judgment in the case of Flock (India) Pot. Ltd. (supra) and Priya Blue Industries Ltd. (supra), the Tribunal held that the Order of assessment could not be challenged in refund claim without filing statutory appeal against the assessment order. Accordingly, the refund claim was held to be not maintainable by the Tribunal. On appeal by the party before the Hon'ble Rajasthan High Court, the High Court in its judgment reported in overruled the Order of the Tribunal and held as under: