TMI Blog2013 (11) TMI 788X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of Notification 21/2002. Therefore, it is duty of the assessing officer to give benefit of exemption under Notification 21/2002 as the assessing officer failed to assess the goods properly. In this case the appellant are entitled to claim refund without challenging the assessment of bill of entry - when the exemption is available it is the duty of the assessing officer to give the exemption to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd Flock (India) P. Ltd. - 2000 (120) E.L.T. 285 wherein the Hon ble Apex Court held that without challenging the assessment, refund claim cannot be filed. 2. The facts of the case are that the appellant procured one consignment of Germinated Oil Palm Seed for home consumption. The goods were classifiable under CTH 12092990 which were exempted under Notification 21/2002, dated 1-3-2002. While fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n these circumstances, when he realised that they paid duty which was not warranted, therefore they are entitled to refund claim as held by Aman Medical Products - 2009-TIOL-566-H.C.-Del. = 2010 (250) E.L.T. 30 (Del.). 4. On the other hand, the ld. AR reiterates the impugned order and contended that as assessment was done and the Notification was conditional, the appellant did not claim the exem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emption, therefore appellant are entitled to claim refund without challenging the bill of entry and the facts of this case are distinguishable from the decision in the case of Flock India and Priya Blue. With these observations, I hold those appellants are entitled to refund claim. Accordingly, the impugned order is set aside. Appeal is allowed with consequential relief. (Dictated in Court) - ..... X X X X Extracts X X X X X X X X Extracts X X X X
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