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TMI Blog2016 (8) TMI 27X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Hon’ble Supreme Court in re Priya Blue Industries (supra). That it was raised upon re-submission of the application after the decision of the Tribunal upholding the dropping of proceedings by Commissioner of Customs throws light on the motive for doing so. By not raising that principal objection at the first stage, the original authority forfeited the right to do so when the alteration in circumstances favoured the importer's claim. The dispute on taxability stands settled in favour of the importer for the period from 2001 to 2005. That resolution of the dispute is equally applicable to subsequent imports. Refund allowed - Decided against the revenue. - APPEAL No. C/90078/2014 - Order No. A/88440/16/SMB - Dated:- 22-1-2016 - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... construed as non-acceptance . Distinguishing it from circumstances of non-protest , the Commissioner (Appeals) held that rejection on the ground of applicability of the decision of the Hon ble Supreme Court in re Priya Blue Industries supra without furnishing appealable order was improper. The specific circumstances of setting aside the rejection of refund claims are: 8. ... However, I agree to the stand of the adjudicating authority that in such cases, there is a requirement of challenging the assessment, as based on another case of previous import, the appellant cannot directly seek refund because, as held in the case of Priya Blue Industries Ltd. supra by the Hon'ble Supreme Court, decision of assessment cannot be modified throu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1962. I would like to make it clear that setting side of the impugned order at this point would not entitle them to refund. The appellant s appeal for passing of speaking order is acceptable and is allowable to this extent only. 4. Revenue is aggrieved by the above order-in-appeal. It is submitted that no request for speaking order was made by the importer and no challenge to the assessment was mounted. Relying upon the decision of the Tribunal in Max India Ltd v. Commissioner of Customs (ICD), New Delhi [2005 (192) ELT 246 (Tri.-Del.)] to the effect that assessment of bill of entry being itself an appealable order, it contends that the importer s wait for a speaking order is no ground to claim exclusion from the bar of limitation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r of Customs Central Excise, Goa, which, in the proceedings to recover duty on imports for 2001 to 2003 having been dropped, was pending for decision of the Tribunal. 7. From the above, it appears that the attempt by Revenue to levy higher duty by resorting to assessment of the parts as finished goods failed as the Tribunal concurred with the findings of Commissioner of Customs Central Excise. It would also appear that the said failure had been accepted by Revenue. 8. It is clear from the records that it was Revenue which initiated the challenge to assessment by issuing demand for differential duty on imports for the period from 2001 to 2005. Bills of entry for the subsequent period, during the pendency of the notice before the Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n laid down by the Hon ble Supreme Court in re Priya Blue Industries (supra) has substantively been adhered to. There was a challenge to the assessment of parts as separate items. The challenge to the assessment of the parts as separate items has failed. Consequently, the levy of enhanced duty is contrary to law and cannot be retained by the exchequer except on ground of limitation of time in seeking refund. 11. It is seen that the refund application made on 9th April 2012 was returned as premature . At that time, after holding the claim for 14 months, the original authority did not consider the application to be violative of the decision of the Hon ble Supreme Court in re Priya Blue Industries (supra). That it was raised upon re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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