TMI Blog2019 (1) TMI 780X X X X Extracts X X X X X X X X Extracts X X X X ..... to the assessing authority for reconsideration of the said claim on the basis of the evidences that appellant would like to place on record in support of his claim. After considering the said claim and evidences assessing authority shall pass a reasoned speaking order accepting or denying the claim of appellant. The matter remanded back to assessing authority for reconsideration - appeal allowed by way of remand. - APPEAL No. C/739/2012 - A/85080/2019 - Dated:- 15-1-2019 - Mr. Ajay Sharma, Member (Judicial) And Mr. Sanjiv Srivastava, Member (Technical) Shri Vipul Khandar, C.A, for appellant Ms. Trupti Chauhan, Assistant Commissioner (AR), for respondent ORDER Per: Sanjiv Srivastava Appellants have filed t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ossible to form a view about claim of any importer as to the technical nature of the goods. Further, under Rule 5 of Customs (Appeals) Rules, 1982, the appellant is not entitled to submit additional evidence at the appellate stage. Considering the facts and circumstances of the case, I pass the following order: Order I uphold the assessment and reject the appeal. 2.1 Appellants have imported Instachk HBsAg Test Card (WB) Instachk HCV Test Card (WB) from InTec Products, INC China. For the import of the said goods appellant filed B/E No 3665574 dated 31.05.2011 claiming classification of said goods under heading 30022011. The goods were accordingly assessed to duty @ 10% (Basic) + Nil (CVD) + 2% (Edu Cess) +1% (SHE) +4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it of exemption otherwise admissible but not claimed by them at the time of filing/ assessment of Bill of Entry. He thus prayed for allowing the appeal. 3.3 Learned Authorized Representative reiterated the order in appeal and submitted that in view of clear finding by the Commissioner (Appeal) that product literature or any other evidence at the time of assessment/ clearance of goods, the appeal filed by the appellant do not have any merits and needs to be dismissed. 4.1 We have considered the submissions made in appeal and during the course of arguments. 4.2 It is now settled law that against the assessment of B/E, appellants can file the appeal before the Commissioner (Appeal). In their appeal they could have claimed re-assessmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ier modules and BSNL s requirement of power plant described. 4. The learned counsel for the assessee at the time of arguments relied on the aforesaid documents to substantiate their contention that the process carried out by the assessee constitutes manufacturing process. It appears the judgment was reserved and was pronounced three months after the date of hearing. At para 5.1 of the impugned order the Tribunal [2011 (265) E.L.T. 156 (Tribunal)] has observed as under : In the entire submissions made by the appellant before us and before the adjudicating authority, there is no technical write up which would indicate as to how the processes (as recorded hereinabove), are incidental or ancillary to the manufactured product. B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Petitioner on account of an inadvertent error chose not to apply for the benefit, would that result in denial of the benefit. In our opinion that by itself would not be answer as a duty is cast on the authority to assess the goods and impose duty according to law which includes a statutory notification, if duty cannot be demanded if otherwise not payable. Once there be a power to assess there is a corresponding duty to assess according to law. The fact that the Petitioner has paid the duty under mistake of law and or in the instant case by oversight, cannot result in being assessed to duty which was otherwise not payable. In our opinion, this will be a case of manifest injustice and on the face of it erroneous. 4.5 Hon ble Bombay High ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the matter back to the adjudicating authority to consider the application of the importer regarding the reclassification of the goods as well as the refund flowing therefrom. In the present case, the question raised is, where reasoned assessment order is not passed, whether the ratio laid down by the Apex Court in the case of the Priya Blue Industries Ltd. (supra) would be applicable. The Tribunal has rightly held in the affirmative. In both the aforesaid cases relied upon by the appellant, the importer had sought reclassification of the imported goods and the consequential refund. In that context, the matters were remanded for decision on merits regarding reclassification and consequential refund, if any. In the present case, during the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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