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TMI Blog2018 (8) TMI 498X X X X Extracts X X X X X X X X Extracts X X X X ..... s been availed - Held that:- As per Sl.No.263A of Notification No.12/2012-C.E. dated 17.03.2012, Excise duty shall be levied at the rate of 1%, subject to the condition that no Cenvat has been availed under Rule 3 or Rule 13 of Cenvat Credit Rules, 2004, in respect of inputs or capital goods used in the manufacture of such goods - In the present case, since mobile phones are imported, the question of availment of Cenvat on the inputs or the capital goods, does not arise. Since the ld.Commissioner (Appeals) has not decided the matter on merit, it would be appropriate to remand the matter to the Commissioner (Appeals) for deciding the matter afresh on merit and to pass an order in accordance with law - appeal allowed by way of remand. - C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n appeal being filed against the same. The ld.Advocate submitted that Bills of Entry are appealable orders under Section 128 of the Act and placed reliance on the decision of the Tribunal in the case of Cipla Ltd. Vs. CC, Indore : 2017 (348) ELT 579 (Tri.Del.). It is also the case of the appellant that relief cannot be claimed by way of refund of duty in terms of Section 27 of the Customs Act, 1962, without first challenging the order of assessment of the Bill of Entry. For proper appreciation of facts, Section 128 of the Act is reproduced below: SECTION 128 Appeals to [Commissioner (Appeals)].. - (1) Any person aggrieved by any decision or order passed under this Act by an officer of customs lower in rank than a [Principal Commiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmissioner of Customs: 2015 (318) ELT 607 (SC), held that when the question of fulfilling such conditions does not arise, it shall be treated as if the conditions have been satisfied and the exemption benefit shall be available. It is further observed that even if the exemption was not claimed at the time of filing of the Bill of Entry, the appellant would not be deprived from claiming such benefit at a later stage. 6. Since the ld.Commissioner (Appeals) has not decided the matter on merit, it would be appropriate to remand the matter to the Commissioner (Appeals) for deciding the matter afresh on merit and to pass an order in accordance with law. Needless to mention that a reasonable opportunity of hearing shall be provided to the appel ..... X X X X Extracts X X X X X X X X Extracts X X X X
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