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TMI Blog2013 (6) TMI 208X X X X Extracts X X X X X X X X Extracts X X X X ..... apter 39 for which concessional rate of duty prescribed is 15%. Notification No. 21/02 Cus which was claimed subsequently by the appellant also covers the LDPE granules as Sr.No. 4 prescribes concessional rate of 10%. When both the exemption notifications were available and at the time of import, the appellant chooses to avail one particular notification No. 13/05 Cus and later on realizing that the other notification is more beneficiary, they were required to challenge the assessment by way of filing appeal against the same. They cannot claim the refund directly without challenging the assessment order in view of Apex Court judgment, in Priya Blue Industries Ltd. reported as [2004 (9) TMI 105 - SUPREME COURT OF INDIA]. Thus, there is n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld have first appealed for the change of the assessment and since they have not failed to do so, their refund claim cannot be entertained. In one of those cases, the Asstt. Commisioner has also rejected the refund claim as time barred. The appeal was filed before Commissioner (Appeals). Commissioner (Appeals) by a common order in appeal dated 17.1.08 upheld the Asstt. Commissioners orders holding that the appellant should have first challenged the assessment of impugned bills of entry before filing the refund. Against this order of the Commissioner (Appeals), these two appeals have been filed. 2. Heard both sides. 3. Shri Awneet Singh, learned counsel for the appellant pleaded that in view of the judgment of the Hon ble Delhi High Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... escribes further concessional rate of duty of 10% but same is subject to certain conditions; that notification NO. 21/02 Cus S. No. 427 also covers the goods imported in this case for which there is concessional rate of duty of 10%; subject to certain conditions; that in respect of goods imported, two exemption notifications were applicable and at the time of clearance, they opted for one of the exemption notification. Subsequently if they want to avail the benefit of other notification, they should have applied for change in assessment by filing the appeal but since they have not done so, in view of Apex Court judgment in Priya Blue Industries, the refund claim is not entertainable. Therefore, he emphasized that exemption claim under notif ..... X X X X Extracts X X X X X X X X Extracts X X X X
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