ORDER
C.N.B. Nair, Member (T)
1. This appeal is directed against rejection of a refund claim amounting to Rs. 12,52,542/-. The impugned order states as under:
“6. The short question involved in the instant appeal is whether the payment of interest of Rs. 12,52,542/- for the period from 1.4.90 to 27.9.96 on the duties which became payable from 1.4.90 onwards and which were in fact paid as late as on 1.9.97 is in consonance with the Order-in-Original No. CE 10/97 (I) dated 25.9.97 passed by the Commissioner of Customs & Central Excise, Hyderabad I Commissionerate and whether the appellants are entitled to the refund of such interest.
7. The appellants have contended that the Order in Original No. C. EX. 10/97 (I) dated 25.9.97 of the Commissioner can only be interpreted as charging interest from 28.9.96 and not retrospectively for the period from 28.9.96. This is not acceptable. No such interpretation can be put to the Commissioner’s Order when it does not say so. The duties, which were legally due for payment from April’ 90 onwards were, in fact, paid by the appellants as late as on 1.9.1997. Hence, equity justice and fairplay demand that they should pay interest also due thereon for the period from 1.4.90 to 27.9.96. The interest for the period from 28.9.96 onwards having been already paid by them. Pursuant to the letter dated 11.3.98 from the Assistant Commissioner, the appellants paid under protest the interest for the period from 1.4.90 to 27.996 amounting to Rs. 12,52,542/- for which they filed the refund claim. If the appellants were aggrieved against the Commissioner’s Order ordering for payment of interest, they were at liberty to prefer an appeal to the CEGAT. Having failed to do so, the order of the Commissioner became final. The Assistant Commissioner has followed the Commissioner’s order which he is bound to do as a matter of judicial discipline. The case of Marcandy prasad Radhakrishna Prasad Pvt. Ltd. vs. C.C.E., Calcutta II (1998 (102) ELT 705 cited by the appellants is the judgment in personem and not judgment in term. It will not apply to their case when Commissioner’s Order is already there in their case, which has become final.
2. We have perused the records and heard both sides. It is clear that the amount claimed as refund had been paid pursuant to adjudication Order-in-Original No. 10 of 1997 (I) dated 25.9.97 passed by the Commissioner of Customs and Central Excise, Hyderabad I Commissionerate, Hyderabad. The contention of the assessee is that the payment made pursuant to the order of adjudication could be challenged in a collateral proceeding like refund claim. During the hearing of the case, learned Counsel for the appellant assessee contended before us that the refund claim of the assessee was maintainable and was required to be allowed on merits. He has also referred to the decision of the Apex Court in the cases of Nawabkhan Abbaskhan vs. State of Gujarat – (1974) 2 Supreme Court Cases 121, Dhurandhar Prasad Singh vs. Jai Prakash University and Others – (2001) 6 supreme Court 534 and Commissioner of Sales Tax, UP vs. Auriaya Chamber of Commerce, Allahabad – 1986 (25) ELT 867 (SC).
3. As against the above contention of the assessee, learned SDR has pointed out that the legal position remains settled against the assessee by the judgment of the Hon’ble Apex Court in the case of C.C.E., Kanpur vs. Flock (India) Pvt. Ltd. – 2000 (120) ELT 285. Learned SDR has submitted that the adjudication order No. 10 of 1997 (I) dated 25.9.97 of the Commissioner having become final on account of non-filing of any appeal, any consequential payment cannot be challenged through a refund application.
4. We find merit in the contention made on behalf of Revenue. The amount in question was paid pursuant to an Order of adjudication. That order was appealable; but no appeal was filed. Therefore, it became final and issues covered by that order cannot be re-opened through a refund application. For this reason. Commissioner (Appeals) refused to entertain the refund application. The view taken by the Commissioner is entirely in conformity with the rule contained in the judgment of the Apex Court in the case of Flock (India) Pvt. Ltd.
5. It is now well settled that, if an appealable order has become final for want of filing a statutory appeal, an indirect challenge to that cannot be made through a refund claim. Para 10 of the judgment of the Apex Court in Flock (India) Pvt. Ltd. make this position abundantly clear. We read that para.
10. 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 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 if 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 Collector that the assessee may file appeal against the order before the Collector (Appeals) if so advised.
6. In view of the legal position stated above, the present refund application is not maintainable. Commissioner was right in rejecting the same. That order is confirmed and the appeal of the assessee is rejected.