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TMI Blog2019 (7) TMI 400X X X X Extracts X X X X X X X X Extracts X X X X ..... are that the respondent herein imported 'Computer Radiography System' and filed Bill of Entry No. 135166 dated 03.01.2006 classifying the product under 90189099. After assessment, the respondent were allowed clearance of goods for home consumption under Section 47 after payment of custom duty of Rs. 3,12,337/-. Later, it was noticed by the Assistant Commissioner that identical goods were being imported at other customs stations after classifying them under Customs Tariff Heading 90229099. A show cause notice was issued to the respondent on 14.02.2006 seeking to reclassify the goods under 90229099 and demand differential duty of Rs. 1,20,201/-. The respondent filed replies and attended personal hearing requesting the demand be dropped. After ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Hon'ble Apex Court in the case of Flock India Ltd., (supra) and Priya Blue (supra). Both these cases pertain to the issues of refund and not the issue of demand under Section 28 and therefore the ratio of these case laws does not apply at all and the First Appellate Authority was wrong in relying on these cases. Learned DR would further submit that in the case of Karnataka Power Corporation [2002 (143) ELT 482 SC] the Hon'ble Apex Court remanded the matter of re-classification back to the Assistant Collector to decide the matter afresh and therefore it is not incorrect for Assistant Commissioner to decide the issue of classification while deciding a demand under Section 28. Learned Departmental Representative submits that the case of Jai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... late Authority was correct in holding that the lower authority cannot raise a demand under Section 28 of the Customs Act without first challenging the assessment done in the bill of entry relying on the judgment of Priya Blue (supra) and Flock India (supra). We find that the judgment of Priya Blue and Flock India of the Hon'ble Apex Court are on the point of refund claim by the assessee without challenging the assessment order in the bill of entry. The present case is different. It is a case where after assessment and clearance of the goods is completed by issue of order under Section 47 of the Customs Act, 1962, within the normal period of limitation, the Deputy Commissioner has raised a demand under Section 28. While raising the demand h ..... X X X X Extracts X X X X X X X X Extracts X X X X
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