G.A. Brahma Deva, Member (J)
1. Arguing for the appellant Shri Swaminathan submitted that refund application has been rejected by the authorities below on the ground that the party has paid the duty based upon the approved price declaration and revised declaration was filed subsequent to the clearance. He submitted that there is no such restriction in Rule 173 C for filing such refund claim and accordingly the Department was not justified in rejecting the claim. He submitted that higher discount was allowed to the parties from 1-7-1996 which resulted in filing a price declaration but belatedly. On the other hand Shri Jain, SDR appearing for the respondent submitted that there is no justification for claiming refund since declaration was filed subsequent to the clearance of the goods. In this context he referred to the decision of the Supreme Court in the case of Collector of Central Excise, Kanpur v. Flock (India) Pvt. Ltd. [2000 (120) E.L.T. 285 (S.C.)] wherein it was held 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’. He submitted that on the same analogy refund claim cannot be granted. Shri Swaminathan submitted that facts and circumstances of the case are distinguishable and the ratio of the aforesaid case is not applicable to the facts of this case.
2. We have carefully considered the matter. There is a force in the argument advanced on behalf of the Revenue that ratio of the decision of the aforesaid case is applicable to this case. Since price declaration was filed subsequent to the clearance, there was no justification for claiming refund as it was correctly pointed out by the Departmental Representative. In the facts and circumstances, we do not find any substance in this appeal. Accordingly, we dismiss this appeal.