Commissioner of C. Ex. Vs. V.N. Dyers and Processors P. Ltd. - Court Judgment

Excerpt:
1. none for the respondents. no request for adjournment has been also received from them. therefore, i proceed to decide the appeal after hearing the learned jdr.2. in this appeal which has been filed by the revenue against the impugned order-in-appeal, the issue relates to refund of the duty to the respondents working under the compounded levy scheme. the learned commissioner (appeals) has allowed the refund by holding that the length of galleries could not be added while determining the acp of the furnace of the respondents and as such the duty charged from them by adding the galleries was excess and that the respondents were entitled to get back the same. he has followed the ratio of law laid down in mahalaxmi textile prints (p) ltd. v. cce, hyderabad - 2000 (93) ecr 402 and vijay anand fabrics (p) ltd. v. cce, hyderabad - 2001 (134) e.l.t.89 (t) = 2000 (93) ecr 662.3. the learned jdr has contended that the order of the commissioner determining the acp of the furnace of the respondents by adding galleries was never challenged before the competent authority and as such it has become final and could not be treated as invalid or nullity so as to allow the refund of the duty to the respondents paid under that order. he has also contended that the ratio of law laid down in the above referred cases relied upon by the commissioner (appeals) is not attracted to the case of the respondents.4. i have gone through the record and in my view the contention raised by the learned jdr deserves to be accepted. from the record, it is evident that the order of the commissioner determining the acp of the furnace of the respondents by adding the galleries, was never challenged by them. that order had become final and duty was paid by them in compliance with that order. even if it is taken that the said order of the commissioner was not legally correct keeping in view the ratio of law referred in the above referred cases relied upon by the commissioner (appeals) that the galleries could not be added while determining the acp of the furnace of an assessee, still, the same was required to be got set aside. the respondents rather accepted that order and paid the duty. they cannot under the law be permitted to take advantage of the judgments rendered in favour of the other assessees.they have to stand on their own legs and any benefit allowed by the tribunal or the court on a similar issue to another assessee, that cannot be claimed as of right by another assessee who had kept mum and not challenged the order which prevented him from taking that benefit.the learned commissioner (appeals) has lost sight of this principle of law. the respondents cannot be said to have paid excess duty. they had paid duty in compliance with an order passed against them and the validity of which had never been challenged by them. therefore, no refund of duty could be legally claimed by them. the impugned order of the commissioner (appeals) consequently cannot be sustained and is set aside. the appeal of the revenue is allowed.

Judgment:
1. None for the respondents. No request for adjournment has been also received from them. Therefore, I proceed to decide the appeal after hearing the learned JDR.2. In this appeal which has been filed by the Revenue against the impugned order-in-appeal, the issue relates to refund of the duty to the respondents working under the compounded levy scheme. The learned Commissioner (Appeals) has allowed the refund by holding that the length of galleries could not be added while determining the ACP of the furnace of the respondents and as such the duty charged from them by adding the galleries was excess and that the respondents were entitled to get back the same. He has followed the ratio of law laid down in Mahalaxmi Textile Prints (P) Ltd. v. CCE, Hyderabad - 2000 (93) ECR 402 and Vijay Anand Fabrics (P) Ltd. v. CCE, Hyderabad - 2001 (134) E.L.T.89 (T) = 2000 (93) ECR 662.

3. The learned JDR has contended that the order of the Commissioner determining the ACP of the furnace of the respondents by adding galleries was never challenged before the competent authority and as such it has become final and could not be treated as invalid or nullity so as to allow the refund of the duty to the respondents paid under that order. He has also contended that the ratio of law laid down in the above referred cases relied upon by the Commissioner (Appeals) is not attracted to the case of the respondents.

4. I have gone through the record and in my view the contention raised by the learned JDR deserves to be accepted. From the record, it is evident that the order of the Commissioner determining the ACP of the furnace of the respondents by adding the galleries, was never challenged by them. That order had become final and duty was paid by them in compliance with that order. Even if it is taken that the said order of the Commissioner was not legally correct keeping in view the ratio of law referred in the above referred cases relied upon by the Commissioner (Appeals) that the galleries could not be added while determining the ACP of the furnace of an assessee, still, the same was required to be got set aside. The respondents rather accepted that order and paid the duty. They cannot under the law be permitted to take advantage of the judgments rendered in favour of the other assessees.

They have to stand on their own legs and any benefit allowed by the Tribunal or the Court on a similar issue to another assessee, that cannot be claimed as of right by another assessee who had kept mum and not challenged the order which prevented him from taking that benefit.

The learned Commissioner (Appeals) has lost sight of this principle of law. The respondents cannot be said to have paid excess duty. They had paid duty in compliance with an order passed against them and the validity of which had never been challenged by them. Therefore, no refund of duty could be legally claimed by them. The impugned order of the Commissioner (Appeals) consequently cannot be sustained and is set aside. The appeal of the Revenue is allowed.