TMI Blog2008 (2) TMI 222X X X X Extracts X X X X X X X X Extracts X X X X ..... the Respondent. [Order per : Justice S.N. Jha, President (for the Bench)]. - This appeal by the assessee is directed against the order of the Commissioner of Customs (Appeals) setting aside the order of the Assistant Commissioner by which the refund claim of Rs. 27,080/- had been allowed in favour of the appellants. 2. Facts of the case, briefly stated, are that the appellant filed two bills of entry, Nos. 376277 and 376278 both dated 15-7-04, for clearance of raw asbestos after paying BCD @ 20% ad valorem besides customs education cess @ 2%. Duty so assessed was deposited on 19-7-04. The appellant filed another bill of entry for similar goods. The duty this time was assessed @ 15% ad valorem . The case of the appellant is that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner of Customs [2002 (143) EL.T. 482 (S.C.)]. 5. On behalf of the Revenue, reliance was placed on Collector of Central Excise v. Flock ( India ) Pvt. Ltd. [2000 (120) E.L.T. 285 (S.C.)], apart from Priya Blue Industries case, and it was submitted that in view of clear pronouncement of the Apex Court, there is no escape from the conclusion that where the assessee has not challenged the assessment order, the refund claim is not maintainable. 6. We have gone through the aforementioned judgments and, we are of the view that the case is covered by the ratio of the decisions in Flock ( India ) and Priya Blue Industries . In the former case it was observed - "10……… there is little scope for doubt tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for refund. It was submitted that the wording of Section 27, particularly, the provisions regarding filing of a claim for refund within the period of 1 year or 6 months also showed that a claim for refund could be made even though no Appeal had been filed against the Assessment Order. It was submitted that if a claim for refund could only be made after an Appeal was filed by the party, then the provisions regarding filing of a claim within 1 year or 6 months would become redundant as the Appeal proceedings would never be over within that period. It was submitted that in the claim for refund the party could take up the contention that the Order of Assessment was not correct and could claim refund on the basis even without filing an Appeal. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said application remained pending and the assessee addressed letters to Asstt. Collector wherein it was stated that after detailed review of the customs tariff and classification, it was found that the goods are parts which were used solely/principally with the generator/machine. The letters elicited no reply but the application (for re-assessment) was rejected. The assessee then appealed to the Commissioner (Appeals) which was dismissed on the ground that the assessee had altered its stand at the appellate stage regarding classification of the goods. When the matter reached the Tribunal, it was observed the appeal raised the question of law as to whether when a new classification is suggested before an appellate authority, the consequenti ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
