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TMI Blog2007 (12) TMI 166X X X X Extracts X X X X X X X X Extracts X X X X ..... VD and education cess and on payment of additional duty of 7% in terms of Notification 76/2004, dated 26-7-2004 as amended by Notification 38/2005, dated 2-5-2005 and on payment of 4% additional duty in terms of Notification No. 19/2005, dated 1-3-2005. They were however, issued a show cause notice stating that the CVD duty was payable at the rate of 16% and not at the rate of 7% which was paid by them and the exemption claimed by the appellants was applicable only to computers and not for import of monitors, keyboard and mouse imported by them. The demand was confirmed and upheld by the Commissioner (Appeals). 3. The learned Advocate for the appellant submits that the demand has been raised by the revenue under Section 28 without first ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... force was also validated by Section 11 by the Finance Act, 2000. However, no such corresponding amendment has been made in Section 28 even though the two provisions are parallel. Therefore, in the custom cases where the assessment has not been challenged, demand for the normal period cannot be raised under Section 28. In support thereof reference was made to the decision of the Tribunal in the case of Wipro v. CCE, 2005 (189) E.L.T. 289 wherein it was held that demand under Section 28 is not warranted without order of assessment having been modified in appeal or review. The Tribunal has in turn relied on the case of Priya Blue cited supra. A similar view was taken in the case of Madhu Garage, 2006 (198) E.L.T. 388 wherein also it was held t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll of entry are generally made on the basis of declaration given on the bills of entry, the department has been given power to demand duty in those cases where such declaration are found to be incorrect or incomplete or there is some error on the part of the officer itself and therefore the provisions of Section 28 cannot be equated with the provisions of refund which are on different footing on to which alone the Apex Court decision which was followed by the various Tribunal's decision cited by the learned Advocate is based upon. He submitted that the Apex Court decision in the case of Priya Blue itself states that refund claim contrary to assessment order not maintainable without order of assessment having been modified in appeal or revie ..... X X X X Extracts X X X X X X X X Extracts X X X X
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