9911796707
TMI Blog2008 (7) TMI 830X X X X Extracts X X X X X X X X Extracts X X X X ..... were advised to get the bill of entry assessed at 10% in stead of 7.5% and accordingly filed the bill of entry. 2. Subsequently appellants filed a refund claim for Rs. 96,262/- on 20-4-2007. 3. The appellants also wrote a letter to the Asst. Commissioner, Gr.-II, Customs House on 15-5-2007 and requested him to allow concessional rate of duty of 7.5% admissible under Sl. No. 553 of Notification No. 20/2007-Cus., dt. 1-3-2007 since higher duty was paid as system was not accepting notification. In the meantime a deficiency memo was issued in respect of the refund claim filed by the appellants requiring them to produce final assessment order passed by the assessing officer. The appellants submitted triplicate copy of bill of entry and othe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his order. 5. Heard both the sides. Ld. Advocate on behalf of the appellants states that the claim for refund which was returned as premature actually amounted to a challenge of the order of the assessment and in support of this contention, he cited the decision of the Tribunal in M/s. Kudremukh Iron and Steel Co. Ltd. v. CC reported in 2007 (217) E.L.T. 286 (Tri. Bang.). The advocate also cited the judgment of the Tribunal in CCE v. OEN India Ltd., but I find that this judgment is not comparable on facts since in that case the refund claim was made on the basis of certificate entitling the importer for exemption subsequently. Similarly in the case of M/s. Dudhari Exports P. Ltd. v. CC reported in MANU/CS/0071/2006 is also not relevant si ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or benefit of notification. In the meantime they had also filed refund claim on 20-4-2007. I also find that the concessional rate of duty of 7.5% in the notification is an unconditional exemption. The Asst. Commissioner in-charge of the Group has arbitrarily finally assessed the bill of entry. He has also not bothered to reply to the appellants to their letters dt. 16-8-2007 and 19-10-2007 requesting for a speaking order. Thereby the appellants have been forced to file an appeal against the finalization of assessment dt. 20-5-2007. Strangely, Commissioner (Appeals) also has not taken into account any of these factors and he has no observation to make about the eligibility to the notification, about correctness of the claim of the appellants ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed appeal, in this case they had asked specifically for a speaking order, which should have been issued to them. Without providing what the appellants were entitled legally and without even replying to them, the Asst. Commissioner in-charge (Assessment) forced them to file an appeal belatedly. Further I also find that the judgment of the Tribunal in M/s. Kudremukh Iron Steel Co. Ltd. s case is applicable on facts to this case also and therefore it has to be held that the filing of the refund claim before the Asst. Commissioner (Refund) amounted to challenging the order of assessment as held by the Tribunal and on this ground also, it has to be held that the claim of the appellants is required to be considered. However, since without final ..... X X X X Extracts X X X X X X X X Extracts X X X X
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