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TMI Blog2016 (10) TMI 726X X X X Extracts X X X X X X X X Extracts X X X X ..... ods from Korea and was entitled to benefit of exemption of Customs duty under Notification No.151/2009-Cus dated 31.12.2009, in respect of goods imported under Korea-India Comprehensive Economic Partnership Agreement and whether the appellant can claim the said benefit, subsequent to import and after assessment of the Bill of Entry, by filing appeal before the Ld. Commissioner(Appeals). 2. The brief facts are that the appellants imported some Injection Moulds from M/s Samsung Electronics Co. Ltd., Korea. As the certificate of origin had not been issued prior to dispatch of the goods from Korea, the same were not available and accordingly did not claim the benefit of exemption under Notification No.151/2009-Cus in the Bill of Entry and clea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned Customs Tariff Rules, 2009 provides that each importing state party may, in accordance with its Laws and regulations, provide that where goods that would have qualified as originating goods when it was imported into its territory, the importer of goods may apply for refund of any excess duty paid as a result of the goods not having been accorded preferential tariff treatment. Accordingly, Ld. Commissioner (Appeals) held that the appellants should have followed the prescribed procedure under Rule 15 of the Customs Tariff Rules, 2009 which have not been followed. 3. The Ld. counsel for the appellants, Mr. Alok Gupta, states that it is a clear case of failure on the part of the Ld. Commissioner (Appeals) to exercise the jurisdiction veste ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e said that the question of excisability or dutiability had become final. The conclusion of the Commissioner (A) in his order dated 223.03.2000 was not binding on the Tribunal. Further one needs to understand the concept of assessment. An order of assessment under the taxing law does not become final before the adjudicating authority in every matter. It is subject to appeal before the Commissioner (A). The Commissioner (A) can even add or subtract certain items from the order of assessment made by the adjudicating authority and that order of the Commissioner (A) could also be treated as an order of assessment. In complicated cases where costing is involved the adjudicating authority can also refer the matter to an expert. The Act also makes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fact that Revenue has not objected to the authenticating of the certificate, Revenue cannot deny the benefit of exemption simply because of non-production of certificate before the lower authorities or the adjudicating authority. 3.2. Ld. counsel further urges that in the interest of justice, this Tribunal may allow the appeal by way of remand with a direction to the adjudicating authority to verify the certificate of origin and allow the benefit of exemption. 4. The Ld. AR for Revenue relies on the impugned order. 5. Having carefully considered the rival contentions, I hold that the Ld. Commissioner (Appeals) have erred in rejecting the appeal and it is a clear case of failure of his part to exercise jurisdiction. In the interest of ju ..... X X X X Extracts X X X X X X X X Extracts X X X X
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