JUDGMENT

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 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?

2. The facts relevant for determination of the question may be stated thus: M/s. Flock (India) Pvt. Ltd.- respondent herein, was manufacturer of jute hessian floked with nylon flocks under L-4 licence issued under the Act. The respondent filed a classification list in which it was claimed that the said product comes under tariff item 22-A. The Assistant Collector after examining the contents of the product and the particulars furnished by the respondent passed an order on 21.1.1978 holding that the product in question is classifiable under tariff item 22-B and not under tariff item 22-A and