TMI Blog2004 (11) TMI 378X X X X Extracts X X X X X X X X Extracts X X X X ..... the Appellants were not aware of the Notification No. 21/2002-Cus., dated 1-3-2002 providing partial exemption from payment of duty in respect of the goods imported by them, they cleared the goods without availing the benefit of the Notification; that Serial No. 232 of the Notification provides partial exemption subject to the condition that the importer, at the time of importation, produces to the Deputy/Assistant Commissioner, a certificate from an officer not below the rank of a Deputy Secretary to the Government of India in the Ministry of Civil Aviation, to the effect that the imported goods are required for the development of Airport in India and that the importer, at the time of clearance, produces a certificate from the Chairman, Ai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y and based on consideration of policy and some others may merely belong to the area of procedure. It will be erroneous to attach equal importance to the non-observance of all conditions irrespective of the purpose they were intended to serve. Reliance has also been placed on the following decisions - (i) CCE, Chennai v. Dynaspede Integrated Systems Ltd. - 2002 (147) E.L.T. 541 (T) Wherein it has been held by the Tribunal that condition regarding production of certificate before clearance of goods is procedural and exemption cannot be denied on the sole ground of belated submission of such certificate. (ii) Birla Institute of Technology v. Collector of Customs - 1991 (56) E.L.T. 753 (T) Wherein it has be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hallenged in appeal, refund of duty paid in accordance with an Order of Assessment cannot be claimed. The learned SDR also mentioned that the benefit of exemption notification was available subject to the condition of presentation of the requisite certificate at the time of import; that admittedly no such certificate was produced; that in fact the Appellants had made a request to the competent authority to issue the requisite certificate after importation of goods; that recently the Supreme Court has held in the case of Eagle Flask Industries Ltd. v. CCE, Pune, 2004 (171) E.L.T. 296 (S.C.) = 2004 (64) RLT 363 (S.C.), wherein the Appellants had failed to comply with requirement of submitting declaration under Notification No. 11/88, that. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Supreme Court has held that So long as the Order of Assessment stands the duty would be payable as per that Order of Assessment. A refund claim is not an Appeal proceeding. The Officer considering a refund claim cannot sit in Appeal over an assessment made by a competent officer. The officer considering the refund claim cannot also review an assessment order. The Supreme Court also found no substance in the contention that provisions for a period of limitation indicates that a refund claim could be filed without filing an Appeal. Thus as the Appellants had filed the refund claim without challenging the Order of Assessment, the claim for refund of duty is not maintainable. 6. We also found no substance in the contention of the learned A ..... X X X X Extracts X X X X X X X X Extracts X X X X
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