TMI Blog2016 (9) TMI 416X X X X Extracts X X X X X X X X Extracts X X X X ..... nd. Therefore, we are of the view that Commissioner (Appeals) has rightly followed the Delhi High Court decision and has rightly held in favour of the respondent. We find no justifiable reason to interfere in the impugned order of the Commissioner (Appeals). - Decided against the Revenue - Customs Appeal No. 51312 of 2016 - Final Order No. 52968 /2016 - Dated:- 3-8-2016 - Ms. Archana Wadhwa, Member (Judicial) And Hon'ble Mr. R K Singh, Member (Technical) Shri S.K Sheoram, AR for the Appellants Shri Niranjan, Advocate for the Respondent ORDER Per Archana Wadhwa ( for the Bench ) Being aggrieved with the order passed by Commissioner (Appeals), Revenue has challenged the said order. 2. After hearing both sides d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 145 (SC)] were considered and it was held that said decision of the Hon ble Supreme Court would apply only in those cases where there was a lis between the importer and the Revenue. As such, by following the said decision of the Hon ble Delhi High Court as also the Tribunal s decision in the case of Akzo Nobel Coating India Pvt. Ltd. vs. CC (Sea) Chennai [2014 (312) ELT 91 (Tri-Chennai)], he allowed the appeal. 5. Hence the present appeal by the Revenue. 6. After hearing both sides, we find that facts are not in dispute. Admittedly, the importer did not claim the benefit of notification NO. 12/2012 in the Bill of Entry so filed by them which came to be finally assessed by the proper officer of the Customs, without considering the appl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ffirmed that a refund claim was not maintainable when the assessee has not challenged the assessment order which became final. It may well be appreciated that in the age of self assessment, the onus to file correct classification as well as invoking proper notification to avail due benefit on the importer themselves. 1.2 Further, Hon ble Supreme Court has upheld the decision of CEGAT in the matter of M/s. Super Cassettes Industries vs Commissioner [2004 (163) ELT A116 (SC)] whereby it was held that the refund claim is not maintainable where the assessee / appellant has not challenged the assessment order because in that case the assessment order becomes final. 1.3 Hon ble Supreme Court vide the order in the case of M/s. Priya Blue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he case of M/s. HCL Perot Systems, it was held by the Apex Court that where an appealable order under the Central Excise Act / Rules was not challenged by the assessee, it was not open to them to question the correctness of the order indirectly by filing a refund claim under section 11B of the Act. 1.5 The observation made by Hon ble Supreme Court were notified by the Board vide Circular No. 24/2004-Cus dated 18.3.2004 with the direction to the field formation to follow Supreme Court s judgment in all future cases. 9. As is seen from the above, the only objection of the revenue relates to the challenge to the assessed Bill of Entry and nowhere in the grounds of appeal, they have raised any contention that notification was not avai ..... X X X X Extracts X X X X X X X X Extracts X X X X
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