9911796707
TMI Blog2011 (1) TMI 1007X X X X Extracts X X X X X X X X Extracts X X X X ..... S. No. Bill of Entry No. & Date TR 6 Challan No. & Date Duty Refund Amount 1. 905885 dt. 10/09/07 98201779 dt. 13/09/07 7,79,520/- 41,320/- 2. 849946 & dt. 26/07/07 98156811 & dt. 30/07/07 3,64,321/- 4,265/- 3. 849947 & dt. 26/07/07 98156812 dt. 30/07/07 7,07,570/- 38,132/- 4. 803543 dt. 19/06/07 98119284 dt. 22/06/07 51,37,626/- 1,72,357/- 5. 803458 dt. 19/06/07 98119231 dt. 22/06/07 5,14,410/- 25,685/- 6. 780784 dt. 01/06/07 98101233 dt. 04/06/07 7,64,686/- 35,739/- 7. 780782 dt. 01/06/07 98101232 dt. 04/06/07 14,09,116 35,942/- 3. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hree Bills of Entry covered by the order-in-original No. 1995/089 AM(I) dated 16/12/2008. The contention is that this is not a case of clerical mistake. This case involves classification dispute and claim of benefit of Notification. The learned JDR relied upon the Hon'ble Supreme Court judgment in the case of Priya Blue Industries Ltd. vs. CC (supra) wherein it was held that once an order of assessment is passed the duty will be payable as per that order unless that order of assessment has been reviewed or challenged in appeal duty would be payable as per that order. So long as assessment order stands duty would be payable as per that order. A refund claim is not an appeal proceeding. The officer considering a refund claim cannot sit in app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ey have not challenged the Commissioner (Appeals) order omitting the order-in-original No. 1995/08 dated 16/12/2008. 6. I have considered the submissions and perused the records. The respondent filed 10 Bills of Entry classifying the goods, namely, fans under CTH 8414 5120 and accordingly paid duty levied thereon. Subsequently, they filed refund claims on the ground that their goods are classifiable under CTH 8414 5190 and they were eligible for the benefit of Notification 21/2002 vide serial No. 870 which provided concessional rate of duty @ 7.5%. The respondent, however, could not produce any evidence to show that they have challenged the assessment orders of the assessing officers. The respondent's plea had been that it was a cle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent case. Therefore, this case is not covered under Section 154 of the Act. The learned Commissioner (Appeals) order is not sustainable in law which is required to be set aside and the appeal required to be allowed.
6.2 The Commissioner (Appeals) has not passed any order relating to the three Bills of Entry (out of the total 10 Bills of Entry) covered under Order-in-Original No. 1995/08 dated 16/12/2008 and admittedly the respondent has not challenged that aspect of the order-in-original. There the adjudicating authority's order would prevail to that extent.
6.3 Insofar as the present appeal is concerned, the Commissioner (Appeals) order is set aside and the appeal is allowed.
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