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TMI Blog2023 (12) TMI 1180X X X X Extracts X X X X X X X X Extracts X X X X ..... pose of the back covers, front cover and the middle cover. Had it been a simple case of refund, there was no scope for urging these facts - Considering the statement of facts as well as the grounds of appeal, the only logical conclusion is that the challenge in the present appeals relates to the issue of classification only and there is not a whisper of the refund claim. The present appeals have not arisen out of the rejection of any refund claim applications. In fact as appears, no such application for refund has been filed by the appellant. Liability to pay Court fees - HELD THAT:- The provisions of section 129A (6) makes it mandatory for the appellant to deposit the court fees where the demand has been disputed or challenged arising out of assessment or reassessment. The only exception as per the Proviso is where under subsection (2) the Committee of Commissioners decides to file an appeal against the order of the Commissioner (Appeals) or a memorandum of cross objections as provided in subsection (4) is filed. Needless to mention that section 129A (7) even where an application for rectification of mistake (ROM) and restoration of an appeal (ROA) is filed the party has to d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4191 appeals before Commissioner of Customs (Appeals) who confirmed the assessments in respect of the said bills of entry by the impugned order dated 22.09.2023. The appellant has challenged the said order in the instant appeals before this Tribunal. 3. We have heard Shri B. L. Narasimhan, learned Counsel for the appellant and Shri Rakesh Kumar, the Authorised Representative for the revenue and have also perused the records of the case. 4. Referring to the provisions of Section 129A (6) of the Act, learned Counsel for the appellant submitted that the same is applicable only where duty and interest is demanded and since in the present case, there is no demand raised by the customs department and the impugned order has merely confirmed the assessments of the bills of entry, it is purely a case of refund of excess duty deposited by the appellant. Relying on the decisions of this Tribunal in Richemont India Pvt. Ltd., vs. CC (Import and General) New Delhi - 2016 (42) STR 26, Gylph International Ltd. vs. CCEx ST, Noida - 2013 (31) STR 430 (LB) and Takshal Pharma Pvt. Ltd., vs. CC (Airport), Mumbai - 2007 (218) ELT 675, he submitted that 129A (6) of the Act does not envisage an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of excess duty discharged. Details of such Bills of Entry along with details of excess duty paid have been annexed herewith as Annexure-4. 7.1 Further, in the memo of appeal, the appellant explained the manufacturing process and the use or purpose of the back covers, front cover and the middle cover. Had it been a simple case of refund, there was no scope for urging these facts. We may now examine the heading of the grounds of appeal taken by the appellant in the present appeals as: A) Phone covers are correctly classifiable under CTI 8517 7090 (erstwhile) CTI 8517 7990 (prevailing) of the Customs Tariff. B) Phone covers are not classifiable under CTH 3920 under Customs Tariff. C) Without prejudice, specific entry shall prevail over general entry in custom tariff. D) Without prejudice to the classification undertaken by the noisy, the entire case of revenue is unsustainable. E) MEITY notification and exemption notification cannot be relied upon for the purpose of classification. F) Lastly, he submitted that reassessment done by customs officer, contrary to self-assessment by importer or assessee, the proper officer is bound to pass speaking order in terms of s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Customs no such fee shall be payable. 10. In support of his submissions, Shri Rakesh Kumar relied on the decision of this Tribunal in the case of E-BIZ. COM PVT. LTD. vs Commissioner of Central Excise, Noida - 2008 (12) STR 438, where the controversy related to the provisions of Section 86(6) of the Finance Act, 1994 which are pari-materia to the provisions of section 129A (6) of the Act and hence it squarely applies to the present case, the relevant paragraphs of the order are quoted below:- 8. From a bare glance at the above provisions it would appear that the appellant is required to pay fee between one thousand rupees and ten thousand rupees depending on the amount of service tax and interest demanded and penalty levied by any Central Excise Officer. It may not be out of place to mention here that a new sub-section (6A) was also inserted by the said amendment, vide Finance (No. 2) Act, 2004, requiring payment of a fee of five hundred rupees on miscellaneous applications for stay or rectification of mistake application or for any other purpose as well as for restoration of appeal or an application. It is evident from the provisions of sub-section (6) of Section 86 as th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd since there is no involvement of any demand of customs duty, interest or levy of penalty, therefore no court fee is payable by the appellant. The earlier orders passed, therefore, clarified that in the case of refund or rebate and where there is no issue of any demand of duty, interest or penalty no court fees shall be charged in filing an appeal before this Tribunal. 12. We have already held that the challenge in the present appeal relates to classification and consequent demand of duty due to denial of exemption benefits. The appellant had chosen to pay the enhanced duty as assessed by the assessing officer at the time of clearance under protest , It cannot be said that the present appeals are not relating to demand and therefore no court fees is payable by the appellant. As the appellant had paid in advance the enhanced duty, the department was not required to issue the Show Cause Notice cum Demand . We agree with the submissions made by the learning AR that quantum of duty assessed, demand of duty and payment of duty are all interrelated and once the amount of duty paid is challenged by a party at the time of payment itself or subsequently, it proves that there was a de ..... X X X X Extracts X X X X X X X X Extracts X X X X
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