ORDER
Krishna Kumar (J), Member
1. This is an appeal filed by the appellants claiming refund of Rs. 2,26,367/-on the ground that the goods were brought back to the factory as the container got damaged. The learned Counsel appearing on behalf of the appellants submits that the goods were duty paid and they were re-exported on payment of duty after re-processing. Therefore, his contention is that the appellants are entitled for refund of the duty under the provisions of Rule 173M. He also cites the decision in the case of R.M.I. Foods Limited reported in 2002 (143) E.L.T. 360 (Tri. – Del.) wherein the re-packing has been held to be process of reconditioning by the Tribunal.
2. Shri M.H. Sheikh, learned JDR appearing for the Revenue submits that the appellants are not entitled for the refund. Permission to bring the goods in the factory was refused and as such the question of refund does not arise. He submits that the lower authorities have correctly refused the refund on the ground that the rejection order dated 7-9-1993 was not appealed against by the appellants and as such it has become final against them. He also submits that the pre-requisite of Rule 173M is that the goods should be brought back to the factory with the permission of the Commissioner. Since, the necessary permission has been refused the question of refund which is a subsequent issue, therefore, automatically fails.
3. I have heard the rival submissions and perused the records. It is seen from the Commissioner (Appeals) order that he has rejected the claim for the refund on the ground that the appellants have failed to appeal against the rejection order dated 7-9-1993 refusing to bring back the goods to the factory for re
processing. In view of this, I do not find any legal infirmity in the order passed
by the learned Commissioner (Appeals). The appeal filed by the appellants is
accordingly rejected.