D.P. Mohapatra, J. - (1.) The consequence of non-challenge of an appealable order passed under the Central Excises and Salt Act, 1944 (hereinafter referred to as 'the Act') arises for determination in this appeal. To be more specific the question is in a case where the Assistant Collector of Central Excise passes an order classifying a product under a particular tariff item and the said order, though appealable is not challenged by the assessee in appeal whether in the application for refund of the duty paid the assessee is entitled to quesion the order of the Assistant Collector as erroneous
(2.) The facts relevant for determination of the question may be stated thus:M/s. Flock (India) Pvt. Ltd. respondent herein, was manufacturer of jute hessian floked with nylon flocks under L-4 licence issued under the Act. The respondent filed a classification list in which it was claimed that the said product comes under tariff item 22-A. The Assistant Collector after examining the contents of the product and the particulars furnished by the respondent passed an order on 21-1-1978 holding that the product in question is classifiable under tariff item 22-B and not under tariff item 22-A and the applicable rate of duty would be 25% ad valorem. In the said order the Assistant Collector expressly stated that the assessee may prefer an appeal against his order to the Collector (Appeals). The assessee neither challenged the said order by filing any appeal nor did it pay the duty under protest.
(3.) The respondent filed an application on 6-4-1979 claiming refund of duty paid alleging inter alia that the product in question were wrongly classified under tariff item No. 22-B, instead it ought to have been classified under tariff item No. 22-A and that the differential duty should be refunded. The Assistant Collector after service of notice on the respondent passed the order dated 27-8-1980 dismissing the claim for refund on the ground that the order dated 21-1-1978 classifying the product as falling under tariff item 22-B had attained finality, and therefore, the claim for refund was not maintainable.;