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2006 (7) TMI 370 - AT - CustomsDemand - Imported ‘Molybdenum Concentrate’ - determining the levy of Countervailing duty u/s 3 - HELD THAT:- The use of the imported goods is for recovery of metal. Thus, the primary condition of Note 2 of Chapter 26 viz. the imported goods are used for the metals of Section XV, is satisfied. The second condition of Note 2 of Chapter 26 is also satisfied inasmuch as the imported concentrate had not been subjected to process not normal to the metallurgical industry. The department, in fact, has stated in the grounds of appeal that by virtue of Note 2 to Chapter 26, the goods have been classified under Heading 2613.10. Therefore, concentrate in question when it satisfies & is covered under term ‘ore’ as given in Chapter Note 2. The definition of ‘ore’ mentioned in Note 2 of Chapter 26 will also apply to appearing in Sl. No. 10 of Notification No. 5/98-C.E. Short levy u/s 28 cannot be raised without challenging the assessment in the bill of entry. The Supreme Court in Priya Blue Industries Ltd. v. Commissioner [2004 (9) TMI 105 - SUPREME COURT] has held that an importer is not entitled to a refund, if assessment on the Bill of Entry are not challenged. The ratio of the said decision will apply to the present case inasmuch as no differential duty can be demanded from the noticees, without the department challenging the assessment in the Bill of Entry. The Tribunal in the case of Wipro Ltd. v. CC, Chennai [2005 (5) TMI 157 - CESTAT, BANGALORE] has held that department cannot demand duty without challenging the assessment made in the Bill of Entry. Appeal rejected.
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