TMI Blog2019 (2) TMI 1504X X X X Extracts X X X X X X X X Extracts X X X X ..... exemption notification. We are not in position to agree with the said contention - appeal dismissed - decided against appellant. - APPEAL Nos. C/473,742-744/2011 - A/85272-85275/2019 - Dated:- 4-1-2019 - Mr. S.K. Mohanty, Member (Judicial) And Mr. Sanjiv Srivastava, Member (Technical) None for appellant (written request to decide on merits) Shri Bhushan Kamble, Assistant Commissioner (AR), for respondent ORDER Per: Sanjiv Srivastava These appeals are directed against the order in appeal no 118 to 121/Mumbai-III/2010 dated 29.11.2010 of Commissioner (Appeals) Mumbai III. By the said order Commissioner (Appeal) has upheld the Assessment made on Bill of entries No 246103 dated 29.09.2009, 238061 dated 22.09. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , it is also seen that under serial No.52 of Notification No.20/2006-Cus dated 01.03.2006, All seeds other than Oil Seeds, falling within CTH 1209 are exempted from additional duty of customs leviable under sub Section (5) of Section 3 of Customs Tariff Act (commonly known as SAD). As the impugned goods are oil seeds, and they are also not classifiable under CTH 2009, they are not eligible for the benefit under the said Notification. 7. In view of the above, I do not find any reason to interfere with the impugned assessments. They are therefore upheld. 3.1 Appellant have challenged the order of Commissioner (Appeal), stating that the correct classification of the Germinated Oil Palm Seeds imported by them would be under head ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndition clearly reflects that the incentive is accorded for promotion of cultivation. Further on base scrutiny of the contents of the said Notification it is very clear that in the Column No 5 the additional duty is not mentioned which would be deemed to be Nil . Had the intention of the of the legislature been to levy additional duty the rate would have reflected in the respective column as that column specifically reflects the rate of additional duty. From the above submission it is very clear that the import was not subject to any additional duty. It is submitted that the assessment so made is contrary to the provisions of the contents of the said Notification. It is settled principle of Law that once a Notification is applied for clear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t challenging the order of assessment, hence the decision of the Tribunal cited by the appellants in their written submission will not be applicable in the present case. Tribunal has in that case held as follows: 2. The facts of the case are that the appellant procured one consignment of Germinated Oil Palm Seed for home consumption. The goods were classifiable under CTH 12092990 which were exempted under Notification 21/2002, dated 1-3-2002. While filing bill of entry appellant did not claim exemption under Notification 21/2002 and the assessing officer assessed the bill of entry. Later on they realised that they are entitled for exemption under Notification 21/2002 and they filed refund claim. The same was rejected on the premise tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sa Goa Ltd. - 2010-TIOL-1729-MUM wherein this Tribunal has held that when the exemption is available it is the duty of the assessing officer to give the exemption to the assessee. As the assessing officer failed to give the exemption, therefore appellant are entitled to claim refund without challenging the bill of entry and the facts of this case are distinguishable from the decision in the case of Flock India and Priya Blue. With these observations, I hold those appellants are entitled to refund claim. Accordingly, the impugned order is set aside. Appeal is allowed with consequential relief. 5.3 In the present case the benefit of Exemption Notification as claimed by the Appellants under Notification No 21/2002-Cus dated 01.03.2002 ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in their appeal do not advance the case of appellant as the said decision do not state so and is also not on the issue of classification. The said decision is authority for giving liberal interpretation to the exemption notification in accordance with the objective of the notifications. Hence the contentions of appellant in respect of classification cannot be agreed to. ii. In the Notification, in column 5, which specifies the effective rate for additional duty, where full exemption from additional duty has been granted, clearly notification indicates Nil . In case where nothing is provided and rate indicated as - , no exemption from additional duty is contemplated. It is now settled law that an exemption notification needs to be const ..... X X X X Extracts X X X X X X X X Extracts X X X X
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