TMI Blog2016 (11) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... try under Customs Tariff Heading No.85318000 has not challenged the same before Commissioner (Appeals). It is the respondent who challenged the classification in the Bill of Entry by filing appeal before the Commissioner (Appeals). The Commissioner (Appeals) decides the classification under heading 85312000. Therefore if at all any appeal is maintainable before the Tribunal of the Revenue shall be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue of order of the assessment which was not acceded to. The respondent being aggrieved with the assessment of Bill of Entry filed appeal before the Commissioner (Appeals), who set aside the classification held by the lower authority and allowed the appeal of the respondent. Being aggrieved by the order of Ld. Commissioner the department filed this appeal. From the statement of fact and the grounds ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consciously now claiming the classification under Heading 85.38 deviating from the earlier stand according to which, the classification was done in 85318000. He submits that against the assessment of the Bill of Entry the Revenue has not challenged before the Commissioner (Appeals). Therefore at the Tribunal stage they cannot come with the plea for classification under some third Tariff items num ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the classification under heading 85312000. Therefore if at all any appeal is maintainable before the Tribunal of the Revenue shall be on the issue of conflicting tariff heading between the 85318000 and 85312000. The department is not allowed to file the appeal before the Tribunal claiming some third tariff item number 8538. This view is also supported by the judgments cited by the Ld. Counsel. T ..... X X X X Extracts X X X X X X X X Extracts X X X X
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