SR. EX. ENGR, PUNJAB STATE ELECTRICITY Vs. CCE

JUDGEMENT

(1.) THE issue involved in this appeal, filed by Senior Executive Engineer, Central Workshop, Punjab State Electricity Board, relates to the refund of the Central Excise duty claimed by them.

(2.) SHRI Ravi Raghvan, learned Consultant, submitted that the appellants fabricate various structural items by way of various processes such as punching, cutting, drilling, bending and galvanising of M.S. angles, rounds and flats; that they were paying Central Excise duty on these fabricated items under the impression that these were excisable goods. Subsequently, they filed refund claims for refund of the duty paid on these structural items which were rejected by the Assistant Commissioner; that on appeal, filed by them, the Commissioner (Appeals) also under the impugned Order has rejected their refund claims on the ground, inter alia, that they had never contested the excisability of the products and they have also failed to adduce any evidence that the assessments were provisional. The learned Consultant, further, submitted that the assessments were provisional as they had filed a letter dated 5.4.2001 with the Department praying for provisional assessments under Rule 9B of the Central Excise Rules. On the other hand, Shri Vikas Kumar, learned SDR, submitted that the assessments were not provisional; that the Commissioner (Appeals) has given a specific finding in the impugned Order that no evidence has been placed by the appellants to show that the assessments were provisional; that they had referred to the Order -in -Original No. 11 -13/02 dated 9.7.2002, which was also perused by the Commissioner (Appeals); that the Commissioner (Appeals) has recorded specific finding in the impugned Order that it is nowhere mentioned in the said Order -in -Original that the assessments were provisional. He, therefore, contended that as the assessments were not provisional and the assessments were not contested by the appellants, the refund claim is not admissible to them in view of the Supreme Court decision in the case of CCE v. Flock (India) Pvt. Ltd. : 2000 (120) ELT 285 (SC) wherein it has been held that "in a case where an adjudicating authority has passed an order which is appealable under the statute and the party aggrieved did not choose to exercise the statutory right of filing an appeal, it is not open to the party to question the correctness of the order of the adjudicating authority subsequently by filing a claim for refund on the ground that the adjudicating authority had committed an error in passing his order. If this position is accepted then the provisions for adjudication in the Act and the Rules, the provisions for, appeal in the Act and the Rules will lose their relevance and the entire exercise will be rendered redundant." He also relied upon the decision of the Supreme Court in the case of Priya Blue Industries Ltd. v. CC (Preventive), 2004 ITOL -78 SC.