Customs, Excise and Gold Tribunal - Calcutta
M/S. Besco Ltd. vs Cce, Calcutta-I on 15 May, 2001
ORDER
Smt. Archana Wadhwa.
1. The appellants are manufacturer of parts of railways. During the period 1.3.93 to 6.4.93, the appellant paid duty of excise at the appropriate rate on the value @ 21,,798.00 per set as per price list filed by them on 4.8.92 and approved by the proper officer on 22.11.93 based on purchase order of Indian Railways. Subsequently from 1.3.93, India Railways reduced the rate from Rs. 21,798.00 to Rs. 21,000.00 per set. The appellant filed a fresh price list on 27.12.93. The said price list was approved by the proper officer w.e.f. the said date.
2. Subsequently appellant filed a refund claim of duty of Rs. 1,25,445.00 in respect of the clearance made at higher value during the period 1.3.93 to 6.4.93. The said refund claim was rejected by the Asstt. Commissioner and such rejection was upheld by Commissioner (Appellants). Hence the present appeal.
3. We have heard Shri S.P. Ghosh, ld. consultant for the appellant and Shri V.K. Chaturvedi, ld. SDR for the Revenue.
4. It is seen that during the period in question the price list filed by the appellant at the higher value was finally approved by the proper officer. The clearances were being effected by the appellant in terms of the said approved price list. It is not the appellants case that the assessment was made provisionally on account of the variation clause in the contract with the railway. The said price list was also not challenged by the appellant in appeal. We find that the Hon'ble Supreme Court in the case of CCE, Kanpur v. Flock(I) Pvt. Ltd. - 2000(4)RLT 131(SC) has held that where the order passed by the adjudicating authority is appealable under the statute and the party aggrieved did not choose to exercise the statutory right of filing the appeal it is not open to the party to question the correctness of the order of the adjudicating authority by subsequently filing a claim for refund on the ground that the adjudicating authority had committed on error. The said order of the Hon'ble Supreme Court has been followed by the Tribunal in the case of Gokul Metalliger Pvt. Ltd. - 2001(43)RLT 674(CEGAT-DEL) wherein refund claim was rejected by observing that the assessment/classification settled in bill of entry was not challenged. In the present matter also it was the appellants own declaration as regards the price of the railway set which was approved by the proper officer and no appeal was filed thereagainst.
5. In view of the above settled legal position, we do not find any merits in the appeal and rejected the same.
(Pronounced)