2015 (9) TMI 191 - AT - Customs

Denial of refund claim - import of wire rods in coils - claim of exemption after assessment and clearance of goods - Denial on the ground that appellant did not challenge the assessment citing judgements of Hon ble Supreme Court in the cases of Priya Blue Industries Ltd. Vs. CC (Prev.) 2004 (9) TMI 105 - SUPREME COURT OF INDIA and CC Vs. M/s. Flock (India) Pvt. Ltd. 2000 (8) TMI 88 - SUPREME COURT OF INDIA - Held that - In the case of Aman Medical Products Ltd. (2009 (9) TMI 41 - DELHI HIGH COURT), the High Court of Delhi has held that for claiming benefit of a Notification to which the appellant was entitled, the original assessment need not be challenged when higher duty was paid by inadvertence without taking benefit of Notification due to ignorance. We, however, notice that the issue here involves classification because Notification No.56/2008-Cus, dated 29.04.2008 is admittedly not applicable to goods classified under CTH 72139990. In these circumstances, the appellant s contention that it was entitled to the benefit of Notification No.56/2008-Cus is totally untenable. As regards the contention that its goods were classifiable under 72.13 (which is covered under exemption Notification No.56/2008-Cus), it is pertinent to note that the classification of the goods requires examination thereof and in absence of the goods there is no way the Customs would be able to take up the issue of classification at this stage. It needs to be reiterated that classification under 72.21 was claimed by the appellant itself and Customs found the said classification to be correct and accordingly assessed the Bill of Entry. In these circumstances, when Notification No.56/2008-Cus does not cover the heading 72.21 and the issue of classification of goods (specially in the absence thereof) cannot be undertaken while deciding the refund application and further that the assessment with regard to classification was never challenged by the appellant, we find no infirmity in the impugned order - Decided against assessee.

Summary

Issues:
- Appeal against rejection of refund claim under Notification No.56/2008-Cus
- Whether original assessment needs to be challenged for claiming refund
- Classification of imported goods under CTH 72.13 or 72.21

Analysis:
1. The appeal was filed against the rejection of a refund claim under Notification No.56/2008-Cus, dated 29.04.2008. The appellant imported goods declared as "wire rods in coils" and claimed classification under sub-heading 72210090. Customs accepted the classification and cleared the goods. However, the refund claim was rejected by the primary adjudicating authority and Commissioner (Appeals) as the appellant did not challenge the assessment, citing judgments of the Hon'ble Supreme Court.

2. The appellant argued that the assessment need not be challenged for claiming a refund, referring to the High Court of Delhi's judgment in Aman Medical Products Ltd. Vs. CC, Delhi. The appellant contended that its goods were classifiable under CTH 72.13. However, it was found that the issue involved classification, as Notification No.56/2008-Cus did not apply to goods classified under CTH 72139990. The appellant's claim of being entitled to the notification's benefit was deemed untenable.

3. The Tribunal noted that the classification of goods under 72.13, covered by the exemption notification, required examination which was not possible in the absence of the goods. Customs had correctly assessed the goods under the classification claimed by the appellant (72.21). Since the issue of classification was never challenged by the appellant and the notification did not cover the relevant heading, the impugned order rejecting the refund claim was upheld. The appeal was therefore dismissed.