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TMI Blog2011 (6) TMI 621X X X X Extracts X X X X X X X X Extracts X X X X ..... y stated facts of the case are that the respondent filed a bill of entry No. 701401, dated 29-8-2008 and paid appropriate duty and cleared the imported goods. After clearance they found that the goods were eligible for concessional rate of duty under Notification No. 25/98-Cus. and 69/04. Accordingly, they filed refund claim of Rs. 5,90,802/- for the customs duty paid under the aforesaid bill of entry. The lower adjudicating authority while relying upon the Apex Court's decision in the case of Priya Blue Industries Ltd., 2004 (172) E.L.T. 145 (S.C.) wherein it was held that the refund claim contrary to assessment order is not maintainable without the order of assessment having been modified in appeal or reviewed. The respondent challenged t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion in the case of Bombay Dyeing & Manufacturing Co. Ltd. v. CCE, Mumbai, 2001 (135) E.L.T. 1392 (Tri.-Mum.) wherein it was held that the manufacturer may elect to avail or not to avail of the exemption notification. They have also cited the Tribunal's decision in the case of G.S. Metalica v. CC(I), Nhava Sheva, 2007 (217) E.L.T. 466 (Tri.-Mum.) wherein refund was allowed that mistakes arising out of an omission or accidental slip by customs officer can be corrected under Section 154 of Customs Act, 1962. 6. I have considered the submissions and perused the records. There is no dispute that the goods were cleared from customs and after clearance they were in the custody of the company. The Commissioner (Appeals) has opined that the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ements made in the entry relating thereto and the documents produced and the information furnished under sub-section (3); but if it is found subsequently on examination or testing of the goods or otherwise that any statement in such entry or document or any information so furnished is not true in respect of any matter relevant to the assessment, the goods may, without prejudice to any other action which may be taken under this Act, be re-assessed to duty. (5) Where any assessment done under sub-section (2) is contrary to the claim of the importer or exporter regarding valuation of goods, classification, exemption or concessions of duty availed consequent to any notification therefore under this Act, and in cases other than those where ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry shall be so authorised to be amended after the imported goods have been cleared for home consumption. Undisputedly, the goods were cleared for home consumption. Therefore, the provisions of Section 149 are not applicable to this case. So far as the Tribunal's decision cited by the respondent in the case of Bombay Dyeing & Manufacturing Co. Ltd., (supra), is concerned the Tribunal held that in case of conditional notification there is an element of option, whereas in the present case the appellants did not claim the notification and filed a refund claim subsequent to the clearance of the goods by claiming the benefit of notification. Therefore, the case law is not applicable to this case. Similarly, in the case of G.S. Metalica (supra) th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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