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M/s Trimax Sands Pvt Ltd., Vatchavalasa (V) , GaraMandal Versus Commissioner of Customs, Visakhapatnam And (Vice-Versa)

2017 (11) TMI 489 - CESTAT HYDERABAD

Appearance of members who ceased to hold office - whether Sh. Pruthi is eligible to appear in view of the condition of section 129(6) of Customs Act, 1962 as made applicable to Central Excise which debars Members from appearing before the Tribunal? - Held that: - only a Member of Tribunal who is confirmed to hold office in such capacity can be said to have ceased to hold the sameand therefore the provisions of section 129(6) of the Act would not be attracted in the case of a Member who was not c .....

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ian Minerals Book as well as the license given by the Department of Atomic Energy for operating mines, that all the operations are subject to strict control of these Departments of Government of India. Therefore, it is apt to refer to such documents to decide the meaning of the word beneficiated - in terms of Rule 70 of Mineral Concession Rules, sand used for metallurgical process will not be treated as a minor mineral. In the present case the sand being used for metallurgical process is not the .....

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ular 332/1/2012-TRU dated 17.2.2012 also clarifies that by beneficiation process the end product of ore is concentrate or upgraded ore with regard to the Chapter notes of Chapter 26 - the order passed by the coordinate Bench in the case of VV Minerals [2015 (10) TMI 2261- CESTAT Chennai] the process undertaken by the appellant in that case is the same as in the present case. Revenue has not put forth any evidence to indicate that the processes are not identical. VV Minerals held that the taxpaye .....

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- Refund claim - refund filed on account of change in classification sought in respect of the Ilmenite Ore exported by them - The appellant filed refund applications claiming the benefit by considering the export duty as 5% instead of the duty at 10% already paid by them in respect of shipping bills whose details along with other details are mentioned in the chart submitted at the time of hearing - Held that: - The law and the High Court judgements referred by us clearly hold the issue in fav .....

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al) Mr. Sujay Kantawala, Adv & Mr. P. S. Pruthi, Consultant for the Assessee Mr P. Jaya Dev, A.R. for the Respondent ORDER [Order Per : M. V. Ravindran] When Sh. P.S. Pruthi Consultant,alongwith Sh. SujayKantawala Advocate for the appellant in this case, made appearance on behalf of the appellant, the Bench raised a query whether Sh. Pruthi is eligible to appear in view of the condition of section 129(6) of Customs Act, 1962 as made applicable to Central Excise which debars Members from appe .....

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) on 26.05.2014 and remained on probation till he retired on 12-10-2016. The advocate also placed on record a copy of letter dated 29-06-2017 received from Registrar, CESTAT, New Delhi which affirmed that Shri P.S. Pruthi was not confirmed as Member. 2. We have considered the submissions of learned Counsel and observe that Section 35Q of Central Excise Act,1944 read with Central Excise( Appeals) Rules interalia permits ex-employees of Department of Customs and Central Excise or Narcotics to appe .....

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that Service, shall be entitled to appear as an authorised representative in any proceedings before a Central Excise Officer for a period of two years from the date of his retirement or resignation, as the case may be. 3. Further, the provisions of Section 129(6) of Customs Act, 1962 provide that on ceasing to hold office, the President, Vice-President or other Member shall not be entitled to appear, act or plead before the Appellate Tribunal. Section 129(6) of Customs Act reads as follows:- &qu .....

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f India Vs. Ramesh Nair W.P. (C) 7112/2013. The judgment in that case was delivered on 2nd December 2013, wherein the Hon ble high Court held that a Member, CESTAT who demits office while on probation is not barred from appearing before CESTAT. The Hon ble High Court held that only a Member of Tribunal who is confirmed to hold office in such capacity can be said to have ceased to hold the sameand therefore the provisions of section 129(6) of the Act would not be attracted in the case of a Member .....

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f office by person who has acquired a lien on it. Further, while appreciating the intention of legislation incorporating Section 129 (6) of the Act, the Tribunal referred to an order of ITAT Delhi ('B' Bench) Special Bench reported as (2009)120 ITD wherein it was held that Members of ITAT are debarred from appearing before ITAT only after retirement from service of the Tribunal and such conditions are not made applicable to a member discharged from service during the period of probation. .....

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e discharge of probationer and only a Member who is confirmed to hold office in such capacity can be said to have ceased to hold the same. Since a probationer does not acquire any lien on the post of Member before its confirmation, there is no question of his ceasing to hold the same......................... 27. The challenge to the vires of Section 129(6) before this Court and the Supreme Court was made by officers of the Indian Customs and Central Excise Service who were also working as Member .....

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or the reason, it is not the case of the respondent that even after demitting office as a confirmed Member (Judicial) he can practice in CESTAT. His case was on demitting office as a probationer, the bar under Section 129(6) would not be applicable......... 33. A Member demitting office while on probation does not retire whereas a Member who is confirmed, retires on attaining the age of superannuation, unless he resigns. The rules do recognize Member on probation and a Member who is confirmed as .....

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d be no order as to costs. ............... 5. The Union of India appealed before the Supreme Court against the aforesaid order of Delhi High Court. The Hon ble apex court in its judgement dated 17-04-2017 dismissed the appeal as having been rendered infructuous and kept the question of law open. 6. In view of the foregoing facts, we hold that Shri P.S. Pruthi, ex-IRS officer is entitled to appear before CESTAT as authorized representative/consultant of the clients. 7. Two appeals are taken up to .....

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he appellant on account of change in classification sought in respect of the Ilmenite Ore exported by them. 8. On 13th September, when the second set of appeals came up for hearing, the consultant representative of the appellant mentioned that the issue of classification under 26140020 was not challenged by the Revenue in the order passed by the Commissioner (Appeals) rejecting the refund claims. The refund claims were rejected on other grounds. However the Bench observed that without deciding t .....

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26140020 -Ilmenite, upgraded (beneficiated ilmenite). The Commissioner (Appeals) vide his order No. VIZ-EXCUS-001-APP-027-16-17 dated 06/07/2016 decided the classification of ilmenite manufactured and exported by the appellant under tariff item 26140020 as upgraded ilmenite (beneficiated ilmenite). For coming to this conclusion, he relied upon Tribunal's decision in the case of V.V. Minerals- 2016(332) ELT 888 (Tri.- Chennai), the documents of National Meteorological Laboratory and Departmen .....

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oods. The next contention is that the process adopted by the appellant is to convert Beach sand to processed sand which cannot be termed as processed ore so as to justify classification under 26140020. The process adopted only separates the mineral ilmenite from the sand and increases the percentage of Ilmenite in the sand. It does not upgrade the main content of Ilmenite Ore, which is Titanium Dioxide-TiO2. Beach sand is a heterogeneous mixture of various mineral bearing sands such as ilmenite .....

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n by Commissioner Appeals, as given in the Mineral Conservation & Development Rules, 1988, has no applicability tothe impugned case as the beach sand falls under the category of sand which is a minor mineral as per Rule 70 of Mineral Concession Rules vide Notification No. GSR 333 Dated 10/02/2015. And the said Rules do not apply to minor minerals.The fourth contention is that various documents such as DCW Limited (one of the biggest exporters of beneficiated ilmenite) website, M/s Cochin Min .....

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g classification when the case of VV Minerals came to their knowledge. There is no estopple to classification. Revenue is taking contradictory stands. On the one hand it is claimed that Beach sand is not an ore and on the other hand, in Para 5 of the grounds of appeal, the process employed by Trimex is detailed wherein Ilmenite of 7% to 9% is upgraded to Ilmenite of 96% to 97%. In Para 5.1 of the ground of appeal itself states that the process carried out leads to separation of Ilmenite ore. Res .....

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sification for titanium ores and concentrates. Just as iron ore and concentrate falls in Chapter 26 but the base metal of iron falls in Chapter 72, similarly, the base metal of Ilmenite that is titanium dioxide falls under tariff item 28230010. The definition of beneficiation as given in Rule 3(d) of the Mineral Conservation and Development Rules, 1988 is applicable to the goods made by the respondent. The said Rules apply to major minerals. As per Rule 70 of Mineral Concession Rules, sand used .....

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eneficiation. Findings 15. We have given careful thought to the submissions of both sides and seen the various documents and records produced before us. 16. As stated in para 3 above, the issue in short is the classification of the goods, whether under 26140010 or under 26140020. The former entry relates to Ilmenite, unprocessed and the latter entry to Ilmenite, upgraded (beneficiated ilmenite). To decide the issue, it may be useful to examine the manufacturing process undertaken by the responde .....

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; The mixed slurry is fed into a rotating screen called trommel for giving a uniform feed less than 1mm size by removing the trash and oversize materials; The screened raw sand is collected in a surge bin below the trommel and pumped through the slurry pump to a set of spirals termed as rougher spirals. In rougher spirals, the raw sand is processed and the % of ilmenite content in the concentrate is upgraded to 36%-38% from 8-10% ilmenite in the raw / unprocessed ilmenite, utilising the specific .....

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upgraded to 52-55% from 36-38% in the feed material. Two portions arrive, Portion-I contains Ilmenite 30-32%, Rutile 1.3%, Sillimanite 20%, Zircon 1.0%, Garnet 20% and Portion-II is waste (Quartz). The waste portion is transported to the mining areas for back filling; the Portion-I is further processed in another set of spirals, where, this is split into two portions. In the first portion, the Ilmenite content is increased to 50% -52% from 30%-32%, Rutile 1.6% from 1.3%, Zircon 1.45% from 1.0%, .....

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ond Floatex Density Separator, the garnet and Sillimanite contents is increased to 60% and 30% respectively; The 30% Sillimanite is further increased to 80% in another process plant. The 60% garnet and 80% Sillimanite are transported to Mineral Separation Plant in tippers. The underflow concentrate having 58-60% ilmenite from the floatex density separator is pumped to mineral separation plant through a series of pumps. The concentrate is dewatered using hydro cyclones and belt filters to reduce .....

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han 600 micron size to high tension roll separators; The dried and screened material is first treated in a set of high tension roll separators termed as primary HT separators, in order to separate ilmenite and rutile utilising the electrical conductivity property of the minerals. Ilmenite being conducting mineral, reports to the conducting fraction. The ilmenite content in the conducting fraction will be 85% which has been upgraded from 58-60% in the feed; and Rutile content is increased to 5% f .....

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ed ilmenite in the non-conducting fraction; The combined material of conduction fraction from primary and secondary HT separators and the magnetic fraction from RER is further beneficiated in rare earth drum magnetic separators. The magnetic fraction is collected as ilmenite product having more than 96% pure ilmenite and the non-magnetic portion is final Rutile mineral of 94%.Thus the ilmenite is upgraded to above 96%. 17. With the process undertaken described above, we may now see the relevant .....

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oying a string of various mechanical and physical processes. Revenue is implying, by referring to CEGAT's decision in Indian Rare Earths Limited Vs. Commissioner of Central Excise, 2002 (139) ELT 352(Tri.- Kolkata), that, because no special process including roasting and chemical treatment is carried out, the process does not result in beneficiated ilmenite. We are unable to appreciate this reasoning because Firstly, the citation referred to is on the manufacture and exciseability of the pro .....

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lity from ROM coal. In the Convenience Volume handed over to us, with references to beneficiation of coal, it is stated by Tata Steel as follows: The crushed raw coal (ROM) has ash percentage varying from 222 to 40 and moisture of 3% to. For use in Blast furnace for steel making, we require clean coal of uniform quality at low ash. So, Beneficiation of ROM raw coal is done to reduce the ash content to bring up to Steel Grade coal. ROM coal of various seams at coal mine is fed into the Coal washe .....

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s than 0.5mm is treated by froth floatation method. As beneficiation is a wet process hence, it increases the moisture percentage of beneficiated coal by around 8% to 15%. After beneficiation, apart from the clean coal (required in Blast furnace for Steel making), we also get Coal by-products named as, middling (ash 40-45%), Tailings (ash 40-45%) and Rejects (ash 60-65%). The product quantity after beneficiation process gets increased due to wet process by adding moisture into the output, shown .....

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ore than the input of raw coal. Beneficiation process results in Clean Coal; Middlings; Tailings; and Rejects Conclusion: It is quite clear that beneficiation process (dense media gravity separation and froth floatation) are a physical separation process to separate higher ash coal and lower ash coal, so no chemical changes are there in the coal mineral, as there are no chemical reactions involved during this beneficiation process....". It is undoubtedly clear from this judgement, that the .....

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confused stand. The elaborate process described in the Grounds of Appeal obtained from the report of the Jurisdictional Range Officer. It shows that the percentage of Ilmenite ore is raised from 6-7% to 96-97% of Ilmenite ore; yet the Department refers (Para 2.5 of grounds of appeal) to the processed goods as Ilmenite sand which cannot be considered as an ore'. Again,in Para 2.1 it is stated that the process leads to separation of Ilmenite ore. Revenue is confusing the process of concentrat .....

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31). In the same Para 3.5 under sub-para (ii), it is stated that synthetic rutile will not be classified under 26140031. Here again we find contradiction in the grounds of appeal. Assuming that the Department's argument is that only upgraded Ilmenite which is synthetic rutile is classifiable under 26140020, the argument is self-defeating because rutile clearly falls under 26140031,26140039 and 26140090 in the tariff and no distinction is made between naturally occurring rutile and synthetic .....

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onds India Ltd. Vs. Commissioner of Trade Tax, Lucknow-2008(227) ELT 497 (SC) to express an opinion that when an entry has been interpreted consistently for several years, ordinarily it would not be permissible for the Revenue to depart therefrom. We have read this judgment. It relates to the issue whether petroleum jelly is a drug or a cosmetic. The issue was discussed at length and on merits it was held that there is no need to change the classification from 'drug' to 'cosmetic' .....

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ontext.Hon ble Supreme Court in the case of Commissioner of Central Excise , Mumbai Vs. Fiat India Pvt. Ltd., [ 2012 (283) E.L.T. 161 (S.C.)] noted the observations made by it in the case of Sushi Suri Vs CBI ........Each case depends on its own facts and a close similarity between one case and another is not enough because either a single significant detail may alter the entire aspect. In deciding such cases, one should avoid the temptation to decide cases (as said by Cardozo) by matching the c .....

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preted according to its meaning in common trade parlance. Some literature has been presented in support. Although we do not agree with a bland statement like this when not made in proper perspective, we also find discrepancies in the literature relied upon by Revenue. Regarding the website of DCW referred by revenue, we find a crucial fact not disclosed in the appeal is that the website also reveals that synthetic rutile is classified by M/s DCW under 282300 and not under 26140020. This belies t .....

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ndia would be valuable. It is seen from the same Indian Minerals Book as well as the license given by the Department of Atomic Energy for operating mines, that all the operations are subject to strict control of these Departments of Government of India. Therefore, it is apt to refer to such documents to decide the meaning of the word "beneficiated". Rule 3(d) of the Mineral Conservation and Development Rules, 1988 define "beneficiation" as beneficiation means processing of mi .....

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find that in terms of Rule 70 of Mineral Concession Rules, sand used for metallurgical process will not be treated as a minor mineral. In the present case the sand being used for metallurgical process is not therefore a minor mineral and does not fall under the exclusion clause 2(iv) of the Mineral Conservation and Development Rules. In any case, Ilmenite is the goods in question here and not the sand. Ilmenite is rare earth mineral. Even the Press Information Bureau of Ministry of Mines note da .....

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o endorsed the Scheme of mining undertaken by them, which refers to their process as mineral beneficiation. In view of all the authentic documentary evidence, we find no hesitation in holding that the process undertaken is one of beneficiation. 24. Board Circular 332/1/2012-TRU dated 17.2.2012 also clarifies that by beneficiation process the end product of ore is concentrate or upgraded ore with regard to the Chapter notes of Chapter 26. The Circular states From the above definition, it is clear .....

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agnetic separation, floatation and concentrate thickening have to be undertaken for ores to be converted into concentrate 25. We find from the order passed by the coordinate Bench in the case of VV Minerals the process undertaken by the appellant in that case is the same as in the present case. Revenue has not put forth any evidence to indicate that the processes are not identical. VV Minerals held that "......the taxpayer had carried out various processes of beneficiation as stipulated und .....

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upheld and Revenue's appeal is rejected. Appeal Nos C/30774-30776/2017-CU(DB) The appeals arise from Order in appeal No.VIZ-CUSTOM-APP-009 to 011-17-18 dated 31/05/2017 under which the Commissioner (Appeals) upheld the order of adjudicating authority who rejected the refund amounts of ₹ 1,43,93,974/-,Rs 2,34,68,983 and ₹ 7,34,95,348 respectively,under three separate orders. 2. The facts are recapitulated as follows. The appellant exported Ilmenite under various shipping bills fro .....

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10%, whereas on processed Ilmenite under 26140020 it became 5%. In the case of VV Minerals Vs. CCE- 2015 (10) TMI 2261- CESTAT Chennai, the Tribunal held that the processed ore exported by the party is upgraded Ilmenite (beneficiated Ilmenite) and chargeable to duty at 5% under 26140020.As the process of manufacture of upgraded Ilmenite undertaken by the appellant is the same as that of VV Minerals, the appellant wrote to the Commissioner of Customs, Vishakhapatnam on 06/11/2015 that they should .....

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ssioner (Appeals) allowed their claim for classification under 26140020 as upgraded Ilmenite (beneficiated Ilmenite), with consequential export duty benefits. Revenue's appeal against this order of Commissioner (Appeals) now stands dismissed by us vide our Order above. 4. The appellant filed refund applications claiming the benefit by considering the export duty as 5% instead of the duty at 10% already paid by them in respect of shipping bills whose details along with other details are menti .....

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145 (SC). Reliance was also placed on CBEC Circular 24/2014-Cus dated 18/03/2004 in which it was clarified that the ratio of above Supreme Court decisions would apply in Customs cases also. 5. The first contention of the appellant is that their shipping bills were finalized only on the issue of weight and value. The consequent duty short paid was made up by them. However, no order was passed on the classification issue which they had challenged in their letter dated 6-11-2015 to Commissioner Cu .....

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also referred to by the appellant in their favour.It was also argued that, in any case, Section 27 of the Customs Act dealing with refunds was amended in 2011. In view of such amendment the ratio of Priya Blue and Flock India does not apply. 6. We have carefully considered the submissions made by both sides and the law on this issue. 7. We find that in the case of Aman Medical Products the Delhi High Court held that .....4. If therefore we refer to language of Section 27, it is more than clear .....

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hich allows him payment of concessional rate of duty merely after filing a Bill of Entry. In fact, such a case is the present case in which there is no assessment order for being challenged in the appeal which is passed under Section 27(1)(i) of the Act because there is no contest or lis and hence no adversarial assessment order In the present case too, we find that there is no lis in that no formal Order was passed in the matter of classification. Therefore, the High Court order squarely applie .....

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aim. The Court referred to the judgment in the case of Aman Medical Products. And observed that the amounts could not have been lawfully collected in the first place. 9. Revenue has referred to judgments including a judgment of the Madras High Court in the case of Ace Designers - 2015(329) ELT 0109. We have seen this judgment. In which reference is made to the Priya Blue Industries and Flock India. But the judgment nowhere holds that the said Supreme Court judgments would apply even when there i .....

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d is admissible even if there was no challenge to the assessment order on the Bill of Entry. We note that in the present appeal, the appellant had sought change in classification vide letter dated 6-11-2015 addressed to Commissioner Customs and also before the Assistant Commissioner Central Excise vide letter dated 23-11-2015. In other words, there was challenge to the rate of duty even if there was no appeal against the assessment order finalizing the Shipping Bills.But no action was taken by C .....

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sessment having become final, the refund cannot be allowed. Section 17 of Customs Act, 1962, has been amended with affect from 8/4/2011 to provide for self-assessment as against assessment by customs officials. Simultaneously, amendment was brought forth in Section 27 also. Taking into consideration these amendments, the Tribunal in various judgments has analyzed the issue of eligibility of refund when bill of entry is filed on self-assessment basis. The issue whether such bill of entry filed on .....

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aid in Suryalaxmi Cotton Mills is squarely applicable to the first ground of objection raised by revenue The ratio of this case is applicable in the present appeal before us. D. CESTAT order dated 11.04.2016 in Kamdhenu Global Ltd. Vs. Commissioner Hyderabad- Hyderabad Bench in appeal No.C/200322014. E. CESTAT order in M/s Styleman Vs. CC-2006(198)ELT 559 (Tri.- Chennai). It was held that 4.It is noticed that the learned Commissioner (Appeals) relied on the Hon ble Apex Court's judgment in t .....

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if they were acquiescing in the assessment. In the circumstances, we are of the view that the refund claim should not have been rejected on the ground that assessment was not challenged.5.In the result, the impugned order gets set aside and the refund claim stands allowed and the appeal also stands allowed. F. M/s Asia Pacific Commodities Ltd., Vs AC 2012 (280) ELT 481 (A.P), wherein the Hon ble High Court of Andhra Pradesh held that 31. In case an exporter/importer or a customs agent parts wit .....

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to file an appeal and without there being an appeal, refund claim is maintainable and if the persons make out a case such refund claim ought to be allowed. The customs officials or the CESTAT cannot deny the refund when there is nothing adverse to the person who paid the customs tariff. We are supported in this view by the decisions of the Supreme Court in Flock India and Priya Blue on which the Senior Standing Counsel also placed reliance. 10. A significant change has been brought about in the .....

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