Rajes Kumar, J. - (1.) BY means of present appeal, the appellant is challenging the order of the Customs, Excise and Service Tax Appellate Tribunal, New Delhi dated 3rd June, 2008 by which the appeal filed by the Commissioner of Central Excise, Kanpur has been allowed. The brief facts giving rise to the present appeal are that the appellant was engaged in the processing of man-made compounded fabrics and paying the duty under Section 3-A of the Central Excise Act (hereinafter referred to as the "Act"). The appellant filed a declaration for fixation of his annual capacity of his hot air stenter under Section 3-A of the Act. It appears that initially vide order dated 26th February, 1999, the Commissioner Central Excise Kanpur has fixed the annual production capacity provisionally in terms of value at Rs.2953.44 lakhs but subsequently vide order dated 29th March, 1999, the annual production capacity has been fixed finally in terms of value, including gallery for stenter no. 1 as Rs.885.324 lacs, for stenter no.2 as Rs.744.684 lacs, for stenter no. 3 as Rs.744.684 lacs and for stenter no. 4 as Rs.744.684 lacs with the monthly duty liability for stenter no. 1 as Rs.9.443 lacs, for stenter no. 2 as Rs.7.943 lacs, for stenter no.3 as Rs.7.943 lacs and for stenter no. 4 as Rs.7.943 lacs. The above determination was made effective from 16th December, 1998. It appears that the appellant has not disputed the aforesaid fixation of annual production capacity and has accepted the order dated 29th March, 1999 inasmuch as no appeal against the said order was filed. However, the appellant has paid duty under protest. It appears that the appellant had not paid excise duty from 16th February, 1998 to March, 1998 in accordance to the fixation of the annual production capacity as per order dated 29th March, 1999 within the specified time and could pay on 21st April, 1999, therefore, a show cause notice was issued by the Superintendent Central Excise,Range-V Dvision-I, Kanpur dated 23rd August, 1999 asking the appellant why interest on the late deposit be not demanded and the penalty under Rule 96-ZQ may not be levied. It appears that the appellant filed a revised declaration under Notification N0. 42/98-CE (NT) dated 10th December, 1998 on 13th August, 1999. A further fresh declaration was also filed on 17th April, 2000 vide letter dated 11th April, 2000 under Notification N0. 26/2000 dated 31st March, 2000. Thereafter, the appellant filed a refund claim on 18th July, 2000 for Rs.12,08,829/-. The refund claim was made on the ground that stenter galleries were not included as per Explanation -1 of Rule 5 of the Hot Air Stenter Independent Textile Processor Annual Capacity Determination Rule 1998; stenter galleries are not aiding the process of heat setting or drying of the fabrics, the excise duty was paid under protest. The said refund claim was rejected by the Deputy Commissioner Central Excise Division-II Kanpur vide order dated 4th October, 2000. It has been mainly rejected on the ground that against the order of the Commissioner fixing the annual production capacity vide order 29th March, 1999, including gallery for stenter has not been challenged by the appellant. The duty was paid as per the order of the Commissioner Central Excise, referred herein-above, and in the refund claim the order of the Commissioner cannot be challenged. In support of the contention reliance is placed on the decision of the Apex Court in the case of Collector of Central Excise, Kanpur Vs. Flock (India) Pvt. Ltd., reported in 2000 (120) ELT 285 (S.C.). Being aggrieved by the order, the appellant filed appeal before the Commissioner Central Excise (Appeals). The appeal was allowed vide order dated 31st December, 2003 on the ground that firstly; party had paid duty under protest through TR-6/Challan; secondly the G.O.'s modified the Rules and the Galleries were excluded from the measurement of the chamber; and thirdly it had been held by Hon'ble Supreme Court that Galleries were to be excluded from the measurement of Hot Air Stenter from very beginning i.e. 16.12.1998. Therefore duty collected on Galleries becomes without the authority of law and are liable to be refunded. The Commissioner (Appeals) further held that in the case of Commissioner of Central Excise, Jaipur-II Vs. SPBL Ltd. [2002 (146) ELT 254 (SC)], the Apex Court had very categorically observed "Rules superseded by new Rules within one year and three months for making the position clear that modified Rules providing for excluding length of Galleries while determining annual capacity of production under "Hot Air Stenter" Independent Textile Processor Annual Capacity. Determination Rules, 2000, Tribunal did not commit any error in relying upon the doctrine of conten poranea expositio to remove the ambiguity in understanding the language of the 1998 Rules". The Hon'ble Supreme Court has very categorically held that galleries were to be excluded while determining production capacity under "Hot Air Stenter Independent Textile Processor Annual Capacity Determination Rules, 1998 and thereafter duty so collected on galleries was without authority of law which becomes liable to be refunded to the appellant. Being aggrieved by the order of the Commissioner (Appeals), Commissioner, Customs and Central Excise, Kanpur filed appeal before the Tribunal. The Tribunal by the impugned order allowed the appeal. The Tribunal allowed the appeal mainly on the ground that on the declaration being filed by the appellant for determination of annual capacity of hot air stenter, the Commissioner Central Excise, Kanpur vide order dated 29th March, 1999 fixed the annual capacity under Section 3-A of the Act. The said order was appealable but the appellant had not filed any appeal challenging the order. The appellant has paid duty accordingly and subsequently filed refund claim on the ground that length of galleries were not to be taken into consideration while fixing the capacity of the stenters relying upon the decision of Bombay High Court in the case of Om Textile Pvt. Ltd. Vs. CCE, reported in 2006 (74) RLT 233. The Tribunal relying upon the decision of the Apex Court in the case of Collector of Central Excise, Kanpur Vs. Flock (India) Pvt. Ltd. (Supra) held that it was not open for the appellant to challenge the order of the Commissioner fixing annual capacity in the refund proceeding which has become final. Heard learned counsel for the parties. Learned counsel for the appellant submitted that the order of the Commissioner, Central Excise fixing the annual production capacity, including the gallery for stenter was patently incorrect. He submitted that vide Notification N0. 14/2000- CE (NT) dated 1st March, 2000, the Hot Air Independent Rules, 2000 were notified replacing earlier rules introduced vide Notification N0. 42/98. Explanation I, II, III and IV appended to the notification are clarificatory in nature by which the galleries were excluded for the measurement of the chamber. He further submitted that the Apex Court in the case of Commissioner of Central Excise, Jaipur-II Vs. SPBL Ltd (Supra) has held that galleries were not to be included in the measurement of the stenter and, therefore, the duty collected was without the authority of law and liable to be refunded. Learned counsel for the appellant submitted that vide letter dated 22nd April, 1999, the appellant has intimated to the Assistant Commissioner for depositing the excise duty under protest on stenter galleries. It is stated therein that a sum of Rs. 5.30,018/- deposited under protest for stenter galleries for the period 16th December, 1998 to 31st March, 1999 and for the month of April, 1999. He submitted that on the issue of show cause notice dated 23.08.1999 by the Superintendent Central Excise demanded a sum of Rs.4,41,418/- as outstanding amount as on 31st March, 1999. In the reply dated 19.07.2000, it was submitted that amount deposited in respect of side galleries was under protest. It was further submitted that the payment of duty in respect of side galleries was assured to be looked into, but has not so far been decided nor any final order for determination of annual production capacity and duty liability thereon has been passed. It is further stated that two orders issued by the Commissioner of Central Excise, Kanpur were not accompanied by any preamble as to enable the Company to seek redress and make representation are being interlocutory order and the amount paid under protest was pending decision. It was further submitted that by letter of protest filed on 22.4.1999 may kindly be taken up so as to determine whether any duty was outstanding on 31st March, 1999 for side galleries is pursuance to the technical expert verification and and report of your good self as well in terms of Explanation -1 and on the basis of which final order is yet to follow. On these facts learned counsel for the appellant submitted that the aforesaid correspondence clearly shows that payment of duty on stenter galleries has always been disputed by the appellant and the duty was paid under protest and the appellant was seeking final order on the verification of the technical export. He submitted that the order of the Commissioner dated 29th March, 1999 was not final because the appellant always disputed the demand of the duty on the stenter galleries and has paid the duty under protest. Therefore, the determination of the capacity vide order dated 29th March, 1999 was not the final order and was subject to further adjudication on the point of stenter galleries. He submitted that the aforesaid aspects have not been considered by the Tribunal and, therefore, the order of the Tribunal is vitiated. He submitted that once in the modified Rules Galleries were excluded from the measurement of the chambers and the Hon'ble Supreme Court on a consideration of amended Rules has held that Galleries have not been included in the chambers in the case of CCE Versus SPVC Limited (Supra) the order of the Commissioner dated 29th March, 1999 stand erroneous and the duty was payable on the annual capacity production excluding galleries. Any duty paid in excess was without the authority of law and cannot be retained by the Revenue. He submitted that in fact, on the protest of the appellant about the determination of the annual capacity excluding the galleries, the Commissioner should have re- determined the capacity having regard to the amended Rules and the decision of the Apex Court referred herein above. At the end he submitted that the order of the Tribunal is vitiated inasmuch as it has not adverted to the findings recorded by the Commissioner while reversing the order. Learned Standing Counsel submitted that the annual production capacity has been determined by the Commissioner, Central Excise vide order dated 29th March, 1999, including the galleries. Such order was appealable but the appellant has not filed any appeal and accepted the said order and paid the duty on the basis of the said order. He submitted that it is not open to the appellant to dispute the order of the Commissioner, Central Excise dated 29th March, 1999 while claiming the refund. In support of the contention he relied upon the decision of the Apex Court in the case of Collector of Central Excise, Kanpur Vs. Flock (India) Pvt. Ltd., reported in 2000 (120) ELT 285 (S.C.) and Constitution Bench decision of the Apex Court in the case of Mafatlal Industries Ltd. Vs. Union of India, reported in 1997 (89) ELT 247 (S.C.). Having heard learned counsel for the parties, we have gone through the order of the Tribunal and the rival submissions. Section 3-A of the Act reads as follows: "Section 3-A. Power of Central Government to charge Excise duty on the basis of capacity of production in respect of notified goods.- (1) Notwithstanding anything contained in Section 3, where the Central Government, having regard to the nature of the process of manufacture or production of excisable goods of any specified description, the extent of evasion of duty in regard to such goods or such other factors as may be relevant, is of the opinion that it is necessary to safeguard the interest of the revenue, specify, by notification in the Official Gazette, such goods as notified goods and there shall be levied and collected duty of excise on such goods in accordance with the provisions of this section. (2) Where a notification is issued under sub-section (1), the Central Government may, by rules,- (a) provided the manner for determination of the annual capacity of production of the factory, in which such goods are produced, by an officer not below the rank of Assistant Commissioner of Central Excise and such annual capacity shall be deemed to be the annual production of such goods by such factory;or...." Notification N0. 42/98-CE(NT) dated 10th December, 1998 and Notification N0. 14/2000-CE(NT) dated 1st March, 2000 read as follows: HOT AIR STENTER INDEPENDENT TEXTILE PROCESSORS ANNUAL CAPACITY DETERMINATION RULES, 1998 [Issued vide Notification No. 42/98-CE(NT) dt. 10.12.1998] In exercise of the powers conferred by sub-section (2) of Section 3A of the Central Excise Act, 1944 (1 of 1994), the Central Government, hereby, makes the following rules to provide for determination of the annual capacity of production of certain goods notified under sub-section (1) of said section 3A, namely:- 1. (1) These rules may be called the Hot Air Stenter Independent Textile Processors Annual Capacity Determination Rules,1998. (2) They shall come into force with effect from the 16th day of December, 1998.
(2.) THESE rules shall apply to processed textile fabrics falling under heading Nos. 52.07, 52.08, 52.09, 54.06, 54.07, 55.11, 55.12, 55.13, [55.14], or processed textile fabrics of cotton or man-made fibres, falling under heading Nos. 58.01, 58.02, 58.06 (except sub-heading No. 5806.20), 60.01 or 60.02 (except sub-heading No. 6002.10), of the Schedule to Central Excise Tariff Act, 1985 (5 of 1986), for determining the annual capacity of production of an independent processor if such textile fabrics are manufactured or produced with the aid of a hot-air stenter. The annual capacity of production referred to in rule 2 shall be determined in the following manner, namely:- (1) An independent processor shall declare- (i) the number of hot-air stenters installed in his factory; (ii) the name of the manufacturer of each of the hot-air stenter, its identification No. and the date of its purchase; (iii) the number and size (both the length and width in centimetres) of chambers in each of the hot-air stenters; (iv) the total value of processed fabrics referred to in rule 2, produced or manufactured in the preceding financial year. **[**] (v) the total quantity of processed fabrics referred to in rule 2 produced or manufactured in the preceding financial year; (vi) the total value of processed fabrics referred to in rule 2, cleared from the factory in the preceding financial year; and (vii) the total quantity of processed fabrics referred to in rule 2, cleared from the factory in the preceding financial year]; to the Commissioner of Central Excise (hereinafter referred to as the Commissioner), with a copy to the Assistant Commissioner of Central Excise. (2) on receipt of the declaration referred to in clause (1), the Commissioner shall take necessary action to verify its correctness and ascertain the correct value of each of the parameters given in such declaration. The Commissioner may, if he so desires, consult any technical authority for this purpose. (3) the annual capacity of production of processed textile fabrics specified in rule 2 in respect of a factory of an independent processor shall be determined keeping in view the following factors, namely:- (i) the number of chambers (of a hot-air stenter), each of which having a rail length of upto 3.05 metres on each side, installed in such factory shall be construed as one chamber and any fraction exceeding such rail length of any such chamber shall be computed on a pro-rata basis; (ii) the average value of the processed textile fabrics (per sq.m.) referred to in rule 2 for such factory arrived at by dividing the total value of such processed fabrics cleared from the factory in the immediately preceding financial year by the total quantity of such processed fabrics, cleared during that financial year; (iii) for the textile fabrics produced by the new units or the closed units of such factory for which it is not possible to calculate average value under sub-clause (ii), the average value of such fabrics shall be as declared by the independent processor at the time of making the declaration, provided that the amount of duty payable on such fabrics shall be re-worked out at the end of a financial year on the basis of actual average value of the textile fabrics produced in the financial year in such factory; (iv) the average value of production per chamber per month as, - (a) in the case of fabrics of average value of upto and including Rs. 30 per square metre, Rs. 11.72 lakhs, and (b) in the case of fabrics of average value of exceeding Rs. 30 per square metre, Rs. 15.63 lakhs. (4) the Commissioner of Central Excise shall, as soon as may be, after determining the annual capacity of production on the basis of the average value of processed textile fabrics and the number of chambers (of a hot-air stenter) of the factory of the independent processor, by an order, intimate the same as also the rate of duty applicable to the independent processor; Provided that the Commissioner may determine the annual capacity of production on provisional basis pending verification of the declaration furnished by the independent processor and pass an order accordingly. Thereafter, the Commissioner may determine, the annual capacity, as soon as may be, and pass an order accordingly. The capacity of production for any part of the year, or any change in the total number of chambers, shall be calculated pro-rata on the basis of annual capacity of production determined in the manner stated in rule 3.
(3.) IN case an independent processor proposes to make any change in installed machinery or any part thereof which tends to change any of the parameters referred to in sub-rule (3) of rule 3, he shall intimate, about the proposed change, to the Commissioner of Central Excise in writing, with a copy to the Assistant Commissioner of Central Excise, one month in advance of such proposed change, and shall obtain the written approval of the Commissioner before making such change, whereafter the Commissioner of Central Excise shall determine the date from which the change in the annual capacity shall be deemed to be effective. Explanation 1.- For the purposes of this notification, a float drying machine or any other equipment of a length 3.05 metres installed in or attached to a stenter for aiding the process of heat setting or drying of the fabrics shall be deemed to be one chamber of a stenter and any fraction of such length shall be computed on a pro-rata basis. Explanation II.- Unless otherwise specified in any rule made under Section 3A of the Central Excise Act, 1944 (1 of 1944), for the purposes of this notification the goods shall be deemed to have been manufactured or produced with the aid of a hot-air stenter, if they are cleared from a factory where a hot-air stenter is installed, irrespective of whether it is in use or in working condition, or is otherwise. [Explanation III.- For the purposes of these rules, an "independent processor" means a manufacturer who is engaged primarily in the processing of fabrics with the aid of power and who also has the facility in his factory (including plant and equipment) for carrying out heat-setting or drying, with the aid of power or steam in a hot-air stenter and who has no proprietory interest in any factory primarily and 0 substantially engaged in the spinning of yarn or weaving or knitting of fabrics, on or after the 10th December, 1998.] Explanation IV.- For the purposes of this notification, the term "value" means the value as determined under Section 4 of the Central Excise Act, 1944 (1 of 1944)." Relevant part of the Notification N0. 14/2000-Central Excise (N.T.), dated 1-3.2000 reads as follows: " IN exercise of the powers conferred by sub-section (2) of Section 3A of the Central Excise Act, 1944 (1 of 1944) and in supersession of the Hot-air Stenter INdependent Textile Processors Annual Capacity Determination Rules, 1998, published in the Gazetter of INdia, Extraordinary, vide notification N0. 42/98-Central Excise (N.T.), dated the 10th December, 1998, the Central Government, hereby makes the following rules to provide for determination of the annual capacity; of production of certain notified under sub-section (1) of said section 3A. Determination of annual capacity and average value,- (1) The annual capacity of production of processed textile fabrics specified in rule-2 in respect of a factory of an independent processor referred to in rule 2 shall be determined in the following manner, namely:- (i) the number of chambers (of a hot-air stenter), each of which having an rail length of upto 3.005 metre on each side, installed in such factory shall be construed as one chamber and any fraction exceeding such rail length of any such chamber shall be computed on a pro-rate basis; (ii) the production capacity of a chamber in terms of quantity shall be deemed to be 1 lakh sq. mtrs. per chamber per month. (2) The average value of the processed textile fabrics (per square meter) referred to in rule 2 for such factory shall be arrived at by dividing the total value of such processed fabrics cleared from the factory in the immediately preceding financial year by the total quantity of such processed fabrics cleared during that preceding financial year: 1 Provided that in the case of textile fabrics produced by a new unit or a closed unit of such factory for which average value as specified above cannot be calculated, the average value of such fabrics shall be as declared by the independent processor at the time of making the declaration, but the amount of duty payable on such fabrics shall be reworked out at the end of a financial year on the basis of actual average value of the textile fabrics produced in the financial year in such factory; (3)The Commissioner of Central Excise shall, as soon as may be, after determining the annual capacity of production and the average value of processed textile fabrics and the number of chambers (of a hot-air stenter) of the factory of the independent processor, by an order, intimate the same as also the rate of duty applicable to the independent processor: Provided that the Deputy Commissioner of Central Excise or the Assistant Commissioner of Central Excise, as the case may be, may determine the annual capacity of production on a provisional basis pending verification of the declaration furnished by the independent processor and pass an order accordingly. Thereafter, the Commissioner may determine, the annual capacity, as soon as may be, and pass an order accordingly. (4) The capacity of production for any part of the year, or any change in the total number of chambers, shall be calculated pro-rate on the basis of annual capacity of production determined in the manner specified in sub-rule (1). Changes in parameters for capacity determination.- IN case an independent processor proposes to make any change in the installed machinery or any part thereof which tends to change any of the parameters referred to in rule 4, he shall intimate, about the proposed change, to the Commissioner of Central Excise in writing, with a copy to the Deputy Commissioner of Central Excise or the Assistant Commissioner of Central Excise, as the case may be, one month in advance of such proposed change, and shall obtain the written approval of the Commissioner before making such change, whereafter the Commissioner of Central Excise shall determine the date from which the change in the annual capacity shall be deemed to be effective. Explanation I.- For the purposes of this notification, a float drying machine or any other equipment, except the galleries, of a length 3.05 metres installed in or attached to a stenter for aiding the process of heat setting or drying of the fabrics shall be deemed to be one chamber of a stenter and any fraction of such length shall be computed on a pro-rata basis. 2 Explanation II.- Unless otherwise specified in any rule made under section 3A of the Central Excise Act, 1944 (1 of 1994), for the purposes of this notification the goods shall be deemed to have been manufactured to produced with the aid of a hot-air stenter, if they are cleared from a factory where a hot-air stenter is installed, irrespective of whether it is in use or not, or is in working condition or not. Explanation III.- For the purposes of this notification,- i."independent processor" means a manufacturer who is engaged primarily in the processing of fabrics with the aid of power and who also has the facility in his factory (including plant and equipment) for carrying out heat-setting or drying, with the aid of power or steam in a hot-air stenter and who has no proprietary interest in any factory primarily and substantially engaged in the spinning of yarn or weaving or knitting of fabrics, on or after the 10th December, 1998; and ii." value" means the value as determined under section 4 of the Central Excise Act, 1944 (1 of 1944) Explanation IV.- For removal of doubts, it is clarified that the hot-air stenters installed in the factory, but which are permanently closed or sealed as on the 1st day of March, 2000 shall, subject to such safeguards, conditions and limitations as may be specified by the Commissioner of Central Excise in this regard, not be taken into account for the purposes of determination of the annual capacity of production of the independent processor." The aforesaid Notifications came up for consideration before the Apex Court in the case of Commissioner of Central Excise, Jaipur-II Vs. M/s SPBL Ltd., reported in JT 2002 (8) SC 244. The Apex Court held as follows: "This part of the reasoning of the tribunal cannot be said to be illegal or erroneous because the explanation itself specifies that other equipment attached to a stenter should also be for aiding the process of heat setting or drying of the fabrics. The Tribunal found that a gallery, which is having no fan or radiator attached to it, cannot come within the purview of interpretation as contemplated by explanation-I. Further, on the basis of the aforesaid amended rules, the tribunal negatived the contention raised by the department that while counting number of chambers in each of the hot-air 3 stenters, the galleries attached to it would be deemed to be one chamber of a stenter. Amended rules clarify and remove the ambiguity particularly which arose because of the trade notice. It is to be stated that in exercise of the powers conferred under Section 3A of the Act, the 1998 rules were framed, which came into force on 10th December, 1998. Those rules were superseded by the rules, 2000, which came into effect from 1st March, 2000. As such, there is not much difference between these rules. The aforesaid rules are also deleted from 1st March, 2000 and no new rules were framed. Thereafter, Section 3A which was inserted in 1997 itself stood omitted by Act 14/2001. So, at present, neither the relevant provisions nor the rules are in existence. IN this view of the matter, contention raised by the learned attorney general does not require much consideration. Further, it cannot be held that the tribunal committed any error in relying upon the doctrine of contemporanea expositio to remove ambiguity in understanding the language of the 1998 rules. Hence, in our view, the impugned order passed by the tribunal does not call for any interference." It is also relevant to refer the relevant paragraph of the decision of the Apex Court in the case of Collector of Central Excise, Kanpur Vs. Flock (INdia) Pvt. Ltd. (Supra) which reads as follows: "Coming to the question that is raised there is little scope for doubt 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 a accepted then the provisions for adjudication in the Act and the Rules, the provision for appeal in the Act and the Rules will lose their relevance and the entire exercise will be rendered redundant. This position in our view, will run counter to the scheme of the Act and will introduce an element of uncertainty in the entire process of levy and collection of excise duty. Such a position cannot be countenanced. The view taken by us also gain support from the provision in sub-rule (3) of Rule 11 wherein it is laid down that where as a result of any order passed in appeal or revision under the Act, refund of any duty becomes due to any person, the proper officer, may refund, the amount to such person without his having to make any claim in that behalf. The provision indicates the importance attached to an order of the appellate or revisional authority under the Act therefore, an order which is appealable under the Act is not challenged then the order is not liable to be questioned and the matter is not to be reopened in a proceeding for refund which we may term it so is in the nature of execution of a decree/order. IN the case at hand it was specifically mentioned in the order of the Assistant Controller that the assessee may file appeal against the order before the Collector (Appeals) if so advised." 4 Paragraph-99 (iv), (v) and vii of the decision of the Apex Court in the case of Mafatlal INdustries Ltd. Vs. Union of INdia (Supra) reads as follows: (iv) It is not open to any person to make a refund claim on the basis of a decision of a Court or Tribunal rendered in the case of another person. He cannot also claim that the decision of the Court/Tribunal in another person's case has led him to discover the mistake of law under which he has paid the tax nor can he claim that he is entitled to prefer a writ petition or to institute a suit within three years of such alleged discovery of mistake of law. A person, whether a manufacturer or importer, must fight his own battle and must succeed or fail in such proceedings. Once the assessment of levy has become final in his case, he cannot seek to reopen it nor can he claim refund without re-opening such assessment/order on the ground of a decision in another person's case. Any proposition to the contrary not only results in substantial prejudice to public interest but is offensive to several well established principles of law. It also leads to grave public mischief. Section 72 of the Contract Act, or for that matter Section 17(1)(c) of the Limitation Act, 1963, has no application to such a claim for refund. (v) Article 265 of the Constitution has to be construed in the light of the goal and the ideals set out in the Preamble to the Constitution and in Articles 38 and 39 thereof. The concept of economic justice demands that in the case of indirect taxes Central Excise duties and Customs duties, the tax collected without the authority of law shall not be refunded to the petitioner-plaintiff unless he alleges and establishes that he has not passed on the burden of duty to a third party and that he has himself borne the burden of the said duty. (vii) While examining the claims for refund, the financial chaos which would result in the administration of the State by allowing such claims is not an irrelevant consideration. Where the petitioner-plaintiff has suffered no real loss or prejudice, having passed on the burden of tax or duty to another person, it would be unjust to allow or decree his claim since it is bound to prejudicially affect the public exchequer. IN case of large claims, it may well result in financial chaos in the administration of the affairs of the State." Section 3A of the Act which was introduced by the Finance Act, 1997 was for a very short period. It was omitted w.e.f. 11th May, 2001 by the Finance Act, 2001. Section 3A of the Act enables the Central Government to charge excise duty on the basis of capacity of production in respect of notified goods. The intention to introduce this provision appears to be that in certain sectors, like induction furnances, steal rerolled mills, etc., the evasion of excise duty on the goods was substantial and production was not disclosed accurately and calculation of excise duty on the basis of their production capacity was thought as appropriate. Under the scheme evolved in this provision the annual production capacity of the mills 5 and the furnances was to be determined by the Commissioner of Central Excise in terms of rule to be framed under Section 3A (2) of the Act by the Central Government. Thereafter, the assessee would be liable to pay duty based on such determination by the Commissioner. If the annual production capacity determined by the Commissioner is disputed by the assessee, the Commissioner was required to redetermine the same as provided in Section 3A (4) of the Act. It appears that the appellant has opted under Rule 962 Q for the payment of excise duty on the basis of annual production capacity to be determined by the Commissioner under Section 3A of the Act. Section 3A (4) of the Act required redetermination of the annual production capacity in case if the determination made by the Commissioner is being disputed. For the determination of annual production capacity Hot Air Stenter INdependent Technical Processors and Annual Capacity Determination Rule 1998 was introduced which has been subsequently superseded by Notification No. 14 of 2000 dated 01.03.2000. The said Rule provided determination of annual capacity production. The Commissioner Central Excise determined the annual production capacity vide order dated 29th March, 1999 including the galleries. It appears that the appellant has not accepted such determination and has paid the duty under protest. It is admitted that against the order dated 29th March, 1999, the appellant has not filed any appeal, but from the subsequent correspondences referred herein above. It appears that the appellant was disputing the demand of duty on stenter galleries and has treated the said order of the Commissioner as interlocutory order subject to final decision on the verification of the technical expert. According to the appellant, no final order has been passed. It also appears that the appellant has filed fresh declaration referred herein above and vide letter dated 25th September, 2000 claimed re- determination on the basis of amendment in the Rule by Notification No.14 of 2000 dated 1st March, 2000 and the decision by the Tribunal in the case of Chiman Lal Silk Mill (P) Versus Commissioner of Central Excise, reported in 2000 (120) ELT 766 (Hyderabad), but these aspects of the matter have not been considered by the Tribunal, which according to us are relevant to adjudicate the issue. Perusal of the order of the Tribunal reveals that the Tribunal has not considered the aforesaid aspect referred hereinabove. IN this view of the matter, we are of the view that the matter requires reconsideration by the Tribunal. The decision relied upon by the Tribunal in the case of Collector of Central Central Excise, Kanpur Vs. Flock ( INdia) Pvt. Ltd. (Supra) and further the decision of the Apex Court cited by the learned Standing Counsel in the case of Mafatlal INdustries Ltd. Vs. Union of INdia (Supra) may be considered and be applied only on a consideration of the aforesaid facts. IN the result, appeal is allowed. The impugned order of the Tribunal dated 3rd June, 2008 is set aside and the matter is remanded back to the Tribunal to decide the appeal afresh in accordance to the law in the light of the observations made above having regard to the various decisions of the Apex Court and the provisions of law. 6 (Justice Rajes Kumar ) Amitava Lala, J. (IN concurrence)--- We have fortified with two important judgements of the Supreme Court in re Flock (INdia) Pvt. Ltd. (Supra) and SPBL. Ltd. (Supra) which required detail discussion. IN earlier judgement the Supreme Court held against the assessee when it had neither challenged the order by filing any appeal nor did it pay the duty under protest. Particularly when the Assistant Collector granted a liberty to the assessee by saying that it may file appeal against the order before the Collector (Appeals), if so advised, it did not think it prudent to proceed accordingly. Factual position therein can not be equated with that of present case. IN the present case the appellant has deposited the requisite amount claimed by the authority under protest admittedly. A further plea has been taken that no final order has been passed by the authority to prefer an appeal. Generally a party aggrieved did not choose to exercise the statutory right of filing an appeal, cannot be permitted to raise a question about correctness of the order of adjudicating authority subsequently by filing a claim for refund on the ground that the adjudicating authority had committed an error in passing the order. If the position is accepted, then the entire exercise will be rendered redundant and will run counter to the scheme of the Act and will introduce an element of uncertainty in the entire process of levy and collection of excise duty. But a parallel Bench of the Supreme Court in the later judgement specially applied their mind in the similar dispute and excluded "galleries" from the relevant machine and other equipments from imposing excise duty and as such, question of refund arose. IN the later judgement, the Supreme Court held that admittedly within a short span of one year and three months, rules framed in 1998 i.e. Hot Air Stenter INdependent Textile Processors Annual Capacity Determination Rules, 1998 were superseded by the similar rules, which came into force in 2000, namely, Hot Air Stenter INdependent Textile Processors Annual Capacity Determination Rules, 2000. Demands of framing said Rule were raised by various Commissionerates. Therefore, this required determination of question of refund irrespective of preferring or not preferring appeal herein. Later judgement is specifically applicable when the earlier one is generally applicable. Special derogates from the general following the maxim specialia generalibus derogant. As soon as the law is declared by the Supreme Court, it gives an immediate substantive right to the appellant to raise such issue before the appropriate forum for adjudication. The presumption against retrospective operation is not applicable to declaratory statues. A substantive right as accrued by the appellant is clarificatory in nature. Curative statues are by their very nature intended to operate upon and affect past transactions and are therefore, fully retrospective. Curative and validating statues operate on conditions already existing and can have no prospective operation. It is well settled that if a statue is curative or merely declares the previous law, retroactive operation would be more rightly ascribed to it than the legislation which may prejudicially affect past rights and transactions. IN a case of fiscal statue/s both the authority and the assessee have to go by the mathematical precision. Collection of levy, tax or duty and refund are two parts of same 7 coin. As the collection in accordance with law is proper so as to refund otherwise, it will be construed as unjust enrichment. Accordingly I agree with my brother and say that the cause requires reconsideration by the authority. (Justice Amitava Lala) IN the result, appeal is allowed. The impugned order of the Tribunal dated 3rd June, 2008 is set aside and the matter is remanded back to the Tribunal to decide the appeal afresh in accordance to the law in the light of the observations made above having regard to the various decisions of the Apex Court and the provisions of law. IN the facts and circumstances, there shall be no order as to costs.;