2002(07)LCX0056

IN THE CEGAT, EASTERN BENCH, KOLKATA

Smt. Archana Wadhwa, Member (J) and Shri V.K. Agrawal, Member (T)

BIHAR CAUSTIC & CHEMICALS LTD.

Versus

COMMISSIONER OF CUSTOMS, CALCUTTA

Order No. A/765/KOL/2002, dated 2-7-2002 in Appeal No. C/13/2002

CASE CITED

Collector v. Flock (I) Pvt. Ltd. — 2000(08)LCX0243 Eq 2000 (120) ELT 0285 (S.C.) — Relied on....................................... [Para 3]

Advocated By :     S/Shri L.K. Bajla and V. Murarka, Advocates, for the Appellant.

Shri A.K. Mondal, JDR, for the Respondent.

[Order per : Smt. Archana Wadhwa, Member (J)]. - Vide the impugned orders the authorities below have rejected the refund claim filed by the appellant on the ground that the customs duty has been paid by them in accordance with the classification made by the department and the appellant has not challenged the classification list in respect of the imported goods. Inasmuch as the assessments on the bill of entry has not been challenged by way of filing appeal before the higher appellate authority refund claim cannot be sanctioned.

2. We have heard Shri L.K. Bajla, adv. along with Shri V. Murarka, adv. appearing for the appellants and Shri A.K. Mondal, ld. JDR for the Revenue.

3. We find that the issue is no more res integra and has been decided by the Hon’ble Supreme Court in the case of CCE, Kanpur v. M/s. Flock (I) Pvt. Ltd. - 2000(08)LCX0243 Eq 2000 (120) ELT 0285 (S.C.). It was held by the Hon’ble Supreme Court that where an adjudicating authority has passed an order which is appealable under the statute and the party aggreived has not chosen to exercise statutory right of filing of 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. In the instant case also we find that the appellants’ refund claim is based upon the classification of the imported items i.e. HCL Synthesis Furnace Parts, which have been classified by the Revenue under Chapter 68. The appellants’ refund claim is based upon their plea that the correct classification of the imported goods falls under Chapter 84. However, they have not filed any appeal against the classification issue. As such, in terms of the Hon’ble Supreme Court’s order the correctness of the classification adopted by the Revenue cannot be challenged by way of filing refund claim subsequently. Accordingly we reject the appeal filed by the appellant.

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Equivalent 2003 (153) ELT 326 (Tri. - Kolkata)