COLLECTOR OF CENTRAL EXCISE, KANPUR versus FLOCK (INDIA) PVT. LTD. C-7, PANKI INDUSTRIAL AREA, KANPUR

Citation: [2000] SUPP. 2 S.C.R. 156 · Decided: 04-08-2000 · Supreme Court of India · Bench: B.N. KIRPAL · Disposal: Appeal(s) allowed

Judgment (excerpt)

A 
B 
COLLECTOR OF CENTRAL EXCISE, KANPUR 
v. 
FLOCK (INDIA) PVT. LTD. C-7, PANKI INDUSTRIAL AREA, 
KANPUR 
AUGUST 4, 2000 
[B.N. KIRPAL AND D.P. MOHAPATRA, JJ.] 
Central Excises and Salt Act, 1944-Sections 35, 35-A, 35-B-Central 
Excise Rules, 1944-Rule 11, 173-B-Appealable order class(fying a product 
C 
under a particular tariff item-Not challenged in appeal-Instead, assessee 
filing a claim for refund on wrong classification-Consequence of 
non-challenge-Held, not open to question the correctness of the order 
subsequently by filing claim for refund which is in the nature of execution of 
a decree/order. 
D 
Respondent-assessee, a manufacturer of jute hessian, filed a 
E 
F 
G 
classification list claiming that the said product comes under tariff item 22-
A. The Assistant Collector, by an order, held that the product is classifiable 
under tariff item 22-B. The assessee did not challenge the order, instead, it 
filed an application claiming refund of duty paid on the ground of wrong 
classification. The Assistant Collector dismissed the claim for refund on the 
ground that the order had attained finality. The assessee filed an appeal 
before the Collector (Appeals). The Collector allowed the appeal and 
remanded the matter to the Assistant Collector to reconsider the matter on 
merits. The appellant unsuccessfully challenged the order of Collector 
(Appeals) before the CEGAT. 
In appeal to this Court, the assessee contended that the jurisdiction to 
determine the validity and sustainability of the claim for refund of duty is 
an independent jurisdiction and in exercise of that jurisdiction, the Assistant 
Collector is not fettered by any order passed by him regarding classification 
of the product. 
Allowing the appeal, this Court 
HELD : 1. 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 
H 
party to question the correctness of the order of the adjudicating authority 
156 
J 
C.C.E. v. FLOCK (INDIA) PVT. LTD. [D.P. MOHAPATRA, J.] 
157 
subsequently by filing a claim for refund on the ground that the adjudicating 
A 
authority had committed an error in passing his order. [160-H; 161-A] 
2. H this position is accepted then the provisions for adjudication in 
the Central Excise 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 will run counter to the scheme of 
B 
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. [161-B] 
3. Sub-rule (3) of Rule 11 also lays 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, if 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 is in the nature of 
execution of a decree/order. [161-C-D] 
c 
D 
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2552 of 1989. 
From the Judgment and Order dated 19.9.88 of the Central Excise 
E 
Customs and Gold (Control) Appellate Tribunal, New Delhi in A. No. 739 of 
1984-D. 
Mukul Rohtagi, Additional Solicitor General, K. Swamy, R.N. Verma 
and P. Parmeswaran for the Appellant. 
Ex-parte against Respondent. 
The Judgment of the Court was delivered by 
F 
D.P. MOHAPATRA, J. The consequence of non-challenge of an 
appealable order passed under the Central Excise and Salt Act, 1944 (hereinafter 
referred to as 'the Act') arises for determination in this appeal. To be more 
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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 question the order of the Assistant Collector as erroneous ? 
H 
A 
B 
c 
D 
158 
SUPREME COURT REPORTS 
(2000] SUPP. 2 S.C.R. 
The facts relev

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