Decided on January 05,2015

JCT LTD. Appellant
C.C.E. Jalandhar Respondents


Ashok Jindal, J. - (1.)APPELLANT is in appeal against the impugned order denying the refund claim on account of that as on 15.01.2004 the assessment was finalized holding that assessee has paid the duty as per the new cart data submitted upto spindle stage but the same cannot be refunded as the burden of unjust enrichment was not passed by the appellant. As appellant has not challenged the said order and failed to prove that they have not passed the incidence of duty to the buyer, therefore they are not entitled to refund claim as made by the appellant. Aggrieved from the said order, appellant is before me.
(2.)THE ld. counsel appearing on behalf of the appellant submits that assessment for the Financial year 2002 -2003 was finalized on 15.01.2004. Thereafter the show cause notice was issued to the appellant on 29.10.2004 for the same period. In these circumstances, the order dated 15.01.2004 becomes non -est and non operative. Therefore, they are entitled for the refund claim filed by the appellant as the impugned orders have been passed on the grounds that they have not challenged the order dated 15.01.2014 which is non est. In support of his contention he submits that in the case of Polydyne Corporation v. C.C.E. Mumbai - : 1999 (108) E.L.T. 94 (Tri), this Tribunal has taken up the view that when assessment is reopened then the assess is entitled to raise all the objections and the assessment already passed becomes non est. He further submits that in the appellants own case for the earlier period, Ld. Commissioner has observed that as the show cause notice has been issued, therefore, the assessment is reopened and all the issues raised by the appellant are required to be considered. In these circumstances, he submits that impugned order be set aside and matter remanded back to the adjudicating authority for reconsideration of the refund claim on the merits.
On the other hand Ld. AR opposes the contention of the Ld. Counsel and submits that the order dated 15.01.2004 has finalized the assessment upto spindle stage and show cause notice dated 29.12.2004 has been issued for the process taken up by the appellant post spindle stage. Therefore, there are different proceedings against the appellant. In these circumstances, the order dated 15.01.2004 is operative and the same has not been challenged by the appellant. Therefore, they are not entitled for the refund claim. He further submits that, as the assessment has not been challenged, therefore, they cannot claim the refund as held by the Hon'ble Apex Court in the case of Priya Blue Industries Ltd. v. C.C. (Preventive) - : 2004 (172) E.L.T. 145 (SC) and in the case of C.C.E. Kanpur v. Flock (India) Pvt. Ltd. - : 2000 (120) E.L.T. 285 (SC). Therefore, the refund claim is rightly rejected by both the lower authorities.

(3.)HEARD the parties and considered the submissions.

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