TMI Blog2019 (7) TMI 400X X X X Extracts X X X X X X X X Extracts X X X X ..... K (INDIA) PVT. LTD. [ 2000 (8) TMI 88 - SUPREME COURT] ? HELD THAT:- The judgment of Priya Blue and Flock India of the Hon ble Apex Court are on the point of refund claim by the assessee without challenging the assessment order in the bill of entry. The present case is different. It is a case where after assessment and clearance of the goods is completed by issue of order under Section 47 of the Customs Act, 1962, within the normal period of limitation, the Deputy Commissioner has raised a demand under Section 28. While raising the demand he issued a show cause notice proposing re-classification of the imported goods and gave an opportunity to the respondent to present their case and considered their submissions - This is not the rati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions after classifying them under Customs Tariff Heading 90229099. A show cause notice was issued to the respondent on 14.02.2006 seeking to reclassify the goods under 90229099 and demand differential duty of ₹ 1,20,201/-. The respondent filed replies and attended personal hearing requesting the demand be dropped. After examination of the submissions of the respondent, Assistant Commissioner held that the goods in question deserve to be classified under custom tariff heading 90229090 and consequently they were not eligible for exemption under Notification No. 10/2003-CE and confirmed the demand of differential duty of ₹ 1,20,201/- along with interest. 4. Aggrieved, the appellant appealed before the First Appellate Auth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion [2002 (143) ELT 482 SC] the Hon ble Apex Court remanded the matter of re-classification back to the Assistant Collector to decide the matter afresh and therefore it is not incorrect for Assistant Commissioner to decide the issue of classification while deciding a demand under Section 28. Learned Departmental Representative submits that the case of Jain Shudh Vanaspati Ltd., [1996 (86) ELT 460 (S.C.)] is on identical issue. The question before the Hon ble Apex Court was whether a demand can be raised under Section 28 of the Customs Act for demanding differential duty subsequent to the passing of the order of clearance of goods under Section 47 of the Customs Act. Clearance under Section 47 subsumes classification, valuation, payme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he assessee without challenging the assessment order in the bill of entry. The present case is different. It is a case where after assessment and clearance of the goods is completed by issue of order under Section 47 of the Customs Act, 1962, within the normal period of limitation, the Deputy Commissioner has raised a demand under Section 28. While raising the demand he issued a show cause notice proposing re-classification of the imported goods and gave an opportunity to the respondent to present their case and considered their submissions. Thereafter, he confirmed the demand. The First Appellate Authority also agrees with the re-classification done by the Deputy Commissioner on merits. He, however, held that the Deputy Commission ..... X X X X Extracts X X X X X X X X Extracts X X X X
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