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TMI Blog2015 (2) TMI 554X X X X Extracts X X X X X X X X Extracts X X X X ..... instead of effective rate of 4% in terms of unconditional exemption Notification No. 4/2006-CE dated 01/03/2006 (Sl. No. 62C. The appellant filed a refund application for an amount of Rs. 1,33,779/- towards the excess paid duty which was rejected by the Assistant Commissioner of Customs on the ground that the appellant has not challenged the assessment of bill of entry, following the ration of the judgement in the case of CCE Vs. Flock India - 2000 (120) ELT 285 (SC) and Priya Blue Industries Ltd - 2004 (192) ELT 145 (SC). In an appeal against the said order-in-original, the Commissioner (Appeals) upheld the order-in-original. Thus, the appellant is before me. 3. Ms. Srinidhi Ganeshan, the learned Counsel for the appellant submits that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The Tribunal also held that this is rectifiable omission under Section 154 of the Customs Act. She also placed reliance on the decision in the case of Sesa Goa Ltd. Vc. CCE, Goa. 4. On the other hand, the Deputy Commissioner (AR) appearing for the revenue reiterates the findings of the Commissioner (Appeals). He also submits that the judgement of Aman Medical Products Ltd. has been challenged by the Revenue before the Hon'ble Supreme Court which is pending, therefore, the issue has not attained finality. 5. I have carefully considered the submissions made by both the sides. 5.1 In the present case, there is no dispute that at the material time of import the effective rate of CVD was 4% by notification No. 4/2006-CE and the appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bunal has referred to the cases of CCE, Kanpur Vs. Flock (India) Pvt. Ltd. [2000(120) ELT 285] and Priya Blue Industries Ltd. Vs. Commissioner of Customs (Preventive) 2004 (172) ELT 145 (SC). In both these cases, referred to by the Tribunal there was an assessment order which was passed and consequently it was held that where an adjudicating authority passed an order which is appealable and the party did not chose to exercise the statutory right of appeal, it is not open to the party to question the correctness of the order of the adjudicating authority subsequently by filing a claim for refund on the ground that adjudicating authority had committed an error in passing his order. These judgments will therefore not apply when there is no ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are subjected to Customs Duty, it is the responsibility of the assessing officer to correctly assess the goods to duty. The importer, in the Bill of Entry, furnishes the description of the goods. He also submits documents like invoice, packing list, technical literature, bill of lading etc. so that correct assessment is carried out. Generally, assessment involves classification of the goods, valuation and applying the correct rate of duty taking into account the exemption notifications. The import of the goods with regard to the Import-Export Policy is also to be examined. The word 'assessment' includes all the above. As regards the rate of duty, the Tariff Schedule against the description of the goods mentions the rate of duty. However ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 416/2007 dated 12.12.2007 quoted by the Revenue, the importer was supposed to file a Certificate for claiming the exemption at the time of import. He failed to file the Certificate. The assessment was completed. Later, the Certificate was obtained and the said importer claimed refund. In that case, this bench, followed the decision of the Larger Bench in the case of Eurotex. Therefore, the facts of that case decided by this bench are distinguishable from those of the present case. 7.3. The Hon'ble Apex Court, in the case of Shree Hari Chemicals Vs. UOI & Anr. - 2006 (193) ELT 257 (SC), had observed that there was an obligation on the part of the Department to extend relief given by an unconditional exemption Notification and the same c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... man Medical Products Ltd. has been challenged before the Hon'ble Supreme Court is observed that though the Revenue has filed before the Supreme Court, the Apex Court has not granted the stay of operation of the order of the Hon'ble High Court of Delhi. Therefore, the said judgement of the Delhi High Court is binding on me. 6. In view of the above judgements, which is on identical facts, I am of the view that the appellant is rightly entitled for refund of excess paid CVD. The order of the lower appellate authority is set aside. The appeal is allowed with consequential relief, if any. Needless to say that the sanctioning authority must verify the aspect of unjust enrichment before sanction of the refund. The appeal is disposed of in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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