TMI Blog2006 (8) TMI 76X X X X Extracts X X X X X X X X Extracts X X X X ..... ts final order No. 760/06, dated 17th May, 2006 decided the appeal finally. The appeal was dismissed by the Tribunal after considering the grounds of appeal as filed by the appellant/applicant. The applicant vide this miscellaneous application seeks to recall said order on the following grounds:- "5. It is respectfully submitted that the Order dated 17th May, 2006 passed by this Hon'ble is otherwise requires review/reconsideration is so far as this Hon'ble Tribunal vide the said Order has held in para 3 and para 5 which states that the "Appellant did not file any Appeal against this assessment, nor did he pay the customs duty under protest." It is submitted that the said finding of facts from the record are contrary to the record. 6 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... merits of the case and on the basis of the judgment of the Hon'ble Supreme Court in the case of Priya Blue Industries Ltd. v. C.C. (Preventive), reported at 2004 (172) E.L.T. 145 (S.C.). 5.Considered the submissions made at length by both sides and perused records. I find that the appellant is praying for review the order dated 17th May, 2006 and grant hearing on merit and pass any other order that the Tribunal may deemed fit. I find that in this case the Tribunal vide its order dated 17th May, 2006 has held that since the appellant had not challenged the assessment of the bill of entry and nor did they pay duty 'under protest' the route of refund claim cannot be undertaken to reopen the assessment. I find that the contention of applicant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Tribunal on the classification of the said goods under Chapter Heading 8504 in some other case. The adjudicating authority rejected the refund claim and on appeal the Commissioner (Appeals) also concurred with the views of the adjudicating authority. Hence, this appeal." 6.As can be seen from the above reproduced paragraph, that the appellant did not challenge the classification of the product from Chapter Heading No. 8504.40 to 8543.89 in the absence of any challenge to this re-classification and the assessment done by the Assessing Officer, the Appellant's refund claim was correctly rejected by the lower authorities. It would not be of any consequence whether the appellant had paid the duty 'under protest' or not. It was for the appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the assessing officer earlier, it is not open to take the route of the refund claim to reopen the assessment which has attained finality." 8.Since the appellant has demonstrated that they had paid the duty 'under protest', the said paragraph needs to be read as under :- "5. Heard learned D.R. and considered the submissions made by him and perused the record. I find from the record that the appellant while clearing their goods on importation accepted the revised classification of the assessing officer under Chapter Heading No. 8543.89 and discharged the duty liability as assessed. They did not challenge the assessment but paid the duty 'under protest'. I find the refund claim was filed after the decision of the Tribunal deciding t ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
