2006 (2) TMI 569 - AT - Central Excise

Summary

Issues:
Challenge to rejection of refund claim based on Customs Notification No. 29/97 for imported Circular Knitting Machine under EPCG Scheme.

Analysis:
The appeal was filed against the rejection of the refund claim for the appellants' imported Circular Knitting Machine under the EPCG Scheme. The appellants claimed the benefit of Customs Notification No. 29/97 but were directed to pay Countervailing Duty (CVD) at 10%. They paid the CVD under protest and later sought a refund, which was denied on the grounds that the machine was not covered under the EPCG scheme. The Commissioner (Appeals) upheld the rejection, stating that the appellants did not challenge the assessment of the Bill of Entry. However, the Tribunal found that marking the Bill of Entry as "CVD paid under protest" constituted a challenge to the assessment. Additionally, the Tribunal noted that in a previous case involving the same appellant, the benefit of the same Customs Notification was allowed, indicating a consistent challenge by the appellant on the identical issue.

The Tribunal emphasized that when CVD is paid under protest, there is no requirement for the appellants to separately challenge the assessment of the Bill of Entry. The Commissioner (Appeals)' finding that the appellants did not challenge the assessment was considered an additional ground not raised in the original rejection of the refund claim. It was clarified that introducing a new ground for dismissal in appellate proceedings is not permissible under settled law. Therefore, the Tribunal allowed the appeal and remanded the matter to the original adjudicating authority for reconsideration. The authority was directed to review the case cited by the appellant, previous case law, and any evidence presented by the appellant regarding the non-passing over of the customs duty incidence. The appellant was to be granted a personal hearing during the fresh decision-making process.