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TMI Blog1994 (4) TMI 135X X X X Extracts X X X X X X X X Extracts X X X X ..... fore the Assistant Collector, Customs (Refund), and the Collector, Customs (Appeals). The case related to the old Central Excise Tariff. As regards the report from the chemical examiner, he stated that the report confirmed the classification adopted by the department. 5. We have carefully gone through the facts and circumstances of the case, and the submissions made by the learned SDR on the date of the hearing, and the written submissions earlier filed on behalf of the appellants. 6. The appellants had imported the material called trivoltherm-N-O.25x900 MM. For countervailing Central Excise duty purposes the classification under Heading No. 5903.29 Central Excise Tariff, was alone entered under column 12 of the relevant bill of entry. They declared on the bill of entry that they intended to avail of proforma credit for the refund of the CV duty from the Central Excise authorities under Rule 56A of the Central Excise Rules, 1944. The goods were assessed under heading No. 5903.29 Central Excise Tariff, as declared, and the appellants paid the duty assessed in April, 1986. Subsequently, they filed a refund claim on the ground that the goods already cleared by them should have b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a refund claim. They had sought revision of the classification. The original assessment was under Heading No. 5903.29. Before Assistant Collector, Customs (Refunds), they convassed assessment under Heading 3922.90. Again they revised their stand and wanted the Collector of Customs (Appeals), Madras to classify the goods under Heading No. 8546. Before us also, they had not taken a clear stand, and had requested for classification either under Heading 8546, or under Heading No. 3922.90, read with Notification No. 132/86-C.E. 9. The goods had been imported during 1985. They had already been cleared in 1986. Assessed bill of entry is treatable as assessment order, and appeal against the same is maintainable. In the case of Khemka Travels v. C.C., 1992 (57) E.L.T. 458 (Tribunal), the Tribunal observed Order on the bill of entry has to be treated as an order, and as such was appealable before the appropriate forum. 10. In the case of Collector of Customs v. Bharat Vijay Mills - 1984 (26) E.L.T. 662 (Tri.) = 1986 (7) ECR 186 (CEGAT), it has been held that the assessment if not appealed against, can not be modified. 11. In the case before us, in place of filing the appeal before th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... claimed by the appellants for the purpose of countervailing duty. 18. The goods were assessed under Heading 5903.29 of CET at the time of clearance. Subsequently refund claim was filed by the appellants for reclassification of the goods under Heading 3922.90 CET read with Central Excise Notification No. 132/86 at 15% ad valorem. The claim was rejected by the Asstt. Collector on the ground that the goods were not tested for composition and in the absence of information the assessment under Heading 5903.29 CET was held to be correct. In appeal before the Collector (Appeals), the appellants have changed their plea for reclassification under Heading 8546 CET as against Heading 3922.90 CET read with C.E. Notification No. 132/86 and this amendment has been allowed by the Collector (Appeals) but rejected the refund claim on merits observing that `Trivoltherm N is basically a thermal insulator material and cannot be classifiable under Heading 8546 as electrical insulators. Accordingly, he upheld the original assessment under Heading 5903 of CET. 19. Refund claim cannot be rejected on the ground that no appeal was filed against the assessment on the bill of entry either under Customs A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al. They also referred to the technical write-up and technical opinion given by the expert to show that item is a composite material comprising Polyester film and Nomex paper meant to be used as an electrical insulating material for a desired class of insulation. Further it was submitted that this issue has been settled by the decision of the Tribunal in Chetna Polycoats (P) Ltd. v. Collector of Central Excise - 1988 (37) E.L.T. 253 and same was upheld by the Supreme Court as appeared under Court Room Highlights in Page A-28 of Vol. 53 E.L.T. Collector (Appeals) also observed in his order that the literature broadly groups them under the category of electrical insulators and the detailed functional characteristics of nomex paper gives an impression that Trivoltherm-N is basically a thermal insulator material having additional and ancilliary characteristics of electrical insulation also. In the opinion given by the Chairman, Department of High Voltage Engineering, Indian Institute of Science, Bangalore it was categorically stated that items in question are essentially electrical insulating materials used as slot liners, coil separators etc. in electrical machines for electrically in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... insulators having high thermal value. He also contended that there was infirmity in preferring refund claim so long the claim is within time-limit under Section 27 of Customs Act. Shri M.K. Jain, the learned Senior Departmental Representative contended that the goods imported are composite material having predominently thermal property. It is a thermal insulator as held by the Collector (Appeals). The learned Senior Departmental Representative Shri M.K. Jain also urged that the Chetna Polycoats (P) Ltd. v. Collector of Central Excise, reported in 1988 (37) E.L.T. 253 (Tribunal) is distinguishable as it related to self-adhesive tapes has not the same material as in the present case. The learned Senior Departmental Representative supported the order proposed by Member (Technical) that the appellants have not substantiated their claim for classification of the goods under Heading 85.46 as electrical insulators. 23. The submissions made have been carefully considered. On the question of whether the refund claim is valid without challenging the original assessment, it is seen that in the Calcutta High Court judgment in the case of I.T.C. Ltd. Another quoted by the Member (Judicial), ..... X X X X Extracts X X X X X X X X Extracts X X X X
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