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TMI Blog2018 (6) TMI 596X X X X Extracts X X X X X X X X Extracts X X X X ..... ejection of the refund claim on the ground that the assessment order has not been challenged, cannot sustain and is set aside. The original authority is directed to process the refund claim on merits - rejection of refund do not sustain - appeal allowed. - C/41464/2016 - Final Order No. 40926/2018 - Dated:- 19-3-2018 - Ms. Sulekha Beevi C.S., Member (Judicial) And Shri Madhu Mohan Damodhar, Member (Technical) Shri Harish Bindumadhavan, Advocate- For the Appellant Shri A. Cletus, Addl. Commissioner (AR)- For the Respondent ORDER The facts of the case are that the appellants had filed 38 Bills of Entry for clearance of 'Lenovo Notebook Computer'. The appellants had claimed on the premise that laptops are inclu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6 (335) ELT 446 (Del.), and (b) Micromax Informatics Ltd. Vs. Principal Commissioner of Customs, Chennai vide judgment dated 18.4.2017 in W.P. No. 3486 of 2016, the rejection of refund claim filed on the ground that the assessment has not been challenged before Commissioner (Appeals) is improper and cannot be sustained. For these reasons, he prays for setting aside the impugned order and t remand for denovo consideration on merits. 3. On the other hand, Id. AR Shri A. Cletus supports the impugned order. He also points out that the very dispute in respect of whether the imported goods should be subject to MRP based valuation under section 4A of Central Excise Act or Section 4 valuation, for the purposes of calculating CVD has not yet been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... perused the records. There is no dispute that the color television sets are notified under Section 4A of the Central Excise Act, 1944 and accordingly in respect of the sales of CTV sets by a manufacturer, which are other than the sale referred to in Rule 2A(b) of the SWM Rules, there would be requirement of declaring the MRP on the packages and assessable value of the goods in such cases would have to be determined under Section 4A i.e. MRP minus abatement as notified under the Notification issued under Section 4A. The appellant have paid duty on the CTVs, in question, sold to M/s. ELCOT on the basis of value determined under Section 4A i.e. declared MRP minus abatement. The Department's contention is that in respect of the sales to M/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stribution of CTVs among poorer section of the population of Tamil Nadu on behalf of the Govt. of Tamil Nadu, cannot be called service industry as it is not a commercial activity. Industrial Consumers also, as the CTVs purchased by them were not meant for use in their factories for production. Since M/s. ELCOT are neither institutional consumer nor industrial consumer, in respect of sale of CTVs by the appellant to them, MRP was required to be declared in term of SWM Rules and accordingly, the provisions of Section 4A would be applicable. The Appellant have paid duty on this basis only i.e. on the value determined under Section 4A. In view of this, the impugned order is not sustainable. The same is set aside. The appeal is allowed. 6. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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