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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 ..... 13/05-Cus and on that basis paid the Customs duty at the rate of 15% ad valoram. Subsequently realizing that, they have applied for claim mentioning wrong notification, as notification No. 13/05 was applicable for the goods of Chapter 29, 26 and 25 while the goods imported were classifiable under Chapter 39 and the correct exemption notification so applicable was notification No. 21/02 Cus (S.No.477) under which effective rate of duty for LDPE granules was 5%. They filed two refund claims claiming the refund of excess paid duty on the ground that same had been paid due to mention of wrong exemption notification which was due to clerical mistake. In both the cases, the refund claims were rejected by the jurisdictional Asstt. Commisioner on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hallenged by filing of appeal. He therefore, pleaded that impugned order upholding the rejection of refund claim on the basis of non-challenging of assessment is not sustainable. On the point of limitation, he pleaded that under section 154 in which there is provisions of correction of clerical mistake and therefore refund claim was within time. 4. Shri N. Pathak, learned DR reiterated the impugned order of Commissioner (Appeals) and relied upon the Apex Court judgment in Priya Blue Industries. Regarding the time bar, learned DR relied upon the finding of impugned order of Commissioner (Appeals) and pleaded that there is no clerical mistake in this case and that notification No. 13/05 Cus also prescribe for concessional rate of duty of 15% ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the table annexed to this notification covers notes of Chapter 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. Since this, is in our ..... X X X X Extracts X X X X X X X X Extracts X X X X
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