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2019 (7) TMI 400

99? - case of appellant is that the assessment order in the subject bill of entry was not challenged by the department before the appropriate forum and therefore no demand under Section 28 of the Customs Act, 1962 is maintainable - applicability of decision in the case of Priya Blue [2004 (9) TMI 105 - SUPREME COURT] and COLLECTOR OF CENTRAL EXCISE, KANPUR VERSUS FLOCK (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 u .....

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nder 90189099. After assessment, the respondent were allowed clearance of goods for home consumption under Section 47 after payment of custom duty of ₹ 3,12,337/-. Later, it was noticed by the Assistant Commissioner that identical goods were being imported at other customs stations 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 cu .....

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nd not the issue of demand under Section 28 and therefore the ratio of these case laws does not apply at all and the First Appellate Authority was wrong in relying on these cases. Learned DR would further submit that in the case of Karnataka Power Corporation [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 .....

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llenging the assessment done in the bill of entry relying on the judgment of Priya Blue (supra) and Flock India (supra). We find 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 c .....

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