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TMI Blog2022 (1) TMI 1282X X X X Extracts X X X X X X X X Extracts X X X X ..... . Brief facts of the case are that the appellant routinely import 'Personal protection Outfits (PPE Equipment)' and classify the same under Tariff Item 6210 10 00, and avail benefit of Notification No. 82/2017-Cus. Similarly, identical imports were made vide Bill of Entry No. 5389512, dated 28-2-2018. However, the appellant's CHA mistakenly classified the PPE Equipment under Tariff item 6203 49 00. Accordingly, excess duty was paid. By the time the error was realised, the goods were cleared. Within 90 days of the payment of duty, the appellants filed refund application for excess duty paid Rs. 12,24,224/- on 25-5-2018, with the requisites namely Bill of Entry No. 5389512 in original, commercial invoice and Bill of Lading, e-payment rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d claim of excess customs duty filed by the appellant importer is inadmissible. Thus, rejected the refund claim. 4. Being aggrieved, the appellant preferred appeal before the Commissioner (Appeals) inter alia on the ground that the appellant is entitled to claim reassessment in terms of its refund application filed under Section 27 of the Customs Act. For this proposition, reliance was placed on the ruling of Delhi High Court in the case of Aman Medical Products Ltd. v. Commissioner of Customs, Delhi - 2010 (250) E.L.T. 30 (Del.), wherein the question before the High Court was - whether non-filing of appeal against the assessed Bill of Entry in which there is no lis between the importer and the Revenue at the time of payment of duty, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... further urged that the Assistant Commissioner (Refunds) have considered and referred to product catalogue (technical literature), which was submitted along with refund claim. Undisputedly, the imported goods will fall under CTH 6210 10 00, because it is made of non-woven material-fabric. As Heading 62.10 provides for classification of clothes made-up of fabrics of Heading 56.02, 56.03, 59.03, 59.06 or 59.07. With the exception of - babies garments the Heading 62.09 covers all garments, made-up of felt or non-wovens, whether or not impregnated, coated, covered or laminated, or of textile fabrics (other than knitted or crocheted fabrics) of Heading 59.03, 59.06 or 59.07, without distinction between male or female wear. 6. It was also c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 128 of the Customs Act or any other provision of law. The refund provision under Section 27 cannot be invoked in the absence of amendment or modification having been made in the Bill of Entry, on the basis of the self-assessment has been made. The refund proceedings are not in the nature of assessment or re-assessment proceedings. 8. The Commissioner (Appeals) also observed that the Bill of Entry in question was filed under self-assessment claiming classification under CTH 6203 49 00. Now under the refund claim the appellant is seeking reclassification, but have not challenged the assessment nor filed any appeal. Thus, the same is hit by the ruling of Apex Court in the case of ITC Limited (supra). Accordingly, he was pleased to re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 11. Having considered the rival contentions, I find that the Revenue have entertained the refund claim and have adjudicated the same by holding that the goods in question - PPE equipment or personal protection outfits have been rightly classified under CTH 6203 49 90. Thus, the order-in-original dated 19-2-2019, is in the nature of reassessment order. I further find that the Assistant Commissioner (Refunds) have passed order in a mechanical way, by simply accepting the advice of the Appraising Group showing total non-application of mind. Under such facts and circumstances, I find that the order of Commissioner (Appeals) is erroneous and misconceived wherein he observed that the refund claim is not entertainable for want of reassessme ..... X X X X Extracts X X X X X X X X Extracts X X X X
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