TMI Blog2010 (6) TMI 747X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessment under CTH 8529 90 90 at 20% + 16%. The same was assessed to duty and subjected to examination and clearance. The applicant cleared the goods on payment of duty of ₹ 94,30,969-00. Subsequently vide letter, dated 3-8-2004, addressed to the Deputy Commissioner of Customs, Group VB, the applicants came up with a request for reassessment of the said goods on the ground that, the equipment was only an MSC Expansion used for expanding the capacity of existing Mobile switching Center, they should be treated as telecommunication equipment and accordingly to be classified under CTH 8517 90 90 as part of telecommunication equipment at 10% +16%. The Deputy Commissioner, Group VB vide letter, dated 25-8-2004 clarified that MSC Expansion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accordance with law. He would submit that the reassessment which has been done by the Dy. Commissioner of Customs is not in consonance with the provisions of Section 17 of the Customs Act, 1962. It is his submission that the reassessment which has resulted in reclassification of the product has resulted in the refund of the excise duty paid by the assessee and this cannot be allowed as the assessment order, dated 18-6-2004 was never challenged in appeal and that order stands. He would rely upon the decision of the Hon ble Supreme Court in the case of Priya Blue Industries Ltd. v. CC [2004 (172) E.L.T. 145 (S.C.)]. 4. Learned counsel appearing on behalf of the assessee would submit that the assessment has been done on a letter given by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommissioner of Customs has re-assessed the bills of entry. Consequent to such reassessment of bills of entry, refund claim has arisen. We find that the learned Commissioner (Appeals) while setting aside the order-in-original which has rejected the refund claim filed by the assessee has recorded the following finding. I have gone through the case records and submissions made by the appellants both written and oral. The lower adjudicating authority did not give any credence to the reassessment order, passed by the Deputy Commissioner of Customs, Group VB vide letter, dated 25-8-2004, as per which the refund claim was made. The lower authority rejected the claim on the ground that the Deputy Commissioner has no role once the duty is paid a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refund has to be considered based on this order only. In view of the above, I pass the following order 6. We find that the finding recorded by the learned Commissioner (Appeals) as reproduced above are very vital and factual. On a specific query from the Bench it has been informed that the Revenue has not filed any appeal against the letter, dated 25-8-2004 which is reproduced hereinabove. In the absence of any appeal against the reassessment, the findings of the learned Commissioner (Appeals) are correct and legal. We do not find any infirmity in the order passed by the learned Commissioner (Appeals). We also find that the decision of the Apex Court in the case of Priya Blue Industries Ltd., will squarely apply in this case and once t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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