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TMI Blog2025 (3) TMI 344X X X X Extracts X X X X X X X X Extracts X X X X ..... ame attains finality unless the same is challenged before the appellate authority - In the present case, the Department is in error in not challenging this order before the appellate authority and by directly issuing another Show Cause Notice to re-classify the goods. On this issue, in the case of Priya Blue Industries v. Commissioner of Customs (Preventive) [2004 (9) TMI 105 - SUPREME COURT], the Hon'ble Supreme Court has held that 'So long as the Order of Assessment stands the duty would be payable as per that Order of Assessment. A refund claim is not an Appeal proceeding. The Officer considering a refund claim cannot sit in Appeal over an assessment made by a competent Officer. The Officer considering the refund claim cannot also r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the customs official in 2007. However, the Adjudicating Authority confirmed the demand. Being aggrieved, they filed their Appeal before the Commissioner (Appeals). The Commissioner (Appeals) noted that extended time period is required to be applied since the Bill of Entry was submitted by the appellant holding that the HS Code is 55121100 as per the test report of CRCL. The Department's classification was correct. He also held that the Department has accepted the mistake in the assessment made while clearing the subject goods, but the lack of knowledge on the part of the Department, on its own, does not absolve the importer from illegal acts. Finally, he went on to affirm the Adjudicating Authority's Order-in-Original. Being aggriev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder by the revenue. In case the Tribunal is not inclined to decide the issue of basis non-filing of the appeal by Revenue, then he will make further submissions on account of merits. 6. The Learned AR for the Revenue reiterates the findings of the lower authorities and submits that the appellant has deliberately adopted a wrong classification thereby becoming eligible to pay lesser custom duty at the time of imports. He justifies the confirmed demands. 7. Heard both sides and perused the Appeal papers and the documentary evidence placed before us. 8. We find that the appellant has got the Bills of Entry assessed by the customs officials. Since the assessment has been done in 2007, this is not a case of self-assessment. In the case of no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egarding filing of a claim within 1 year or 6 months would become redundant as the Appeal proceedings would never be over within that period. It was submitted that in the claim for refund the party could take up the contention that the Order of Assessment was not correct and could claim refund on that basis even without filing an Appeal. 6. We are unable to accept this submission. Just such a contention has been negatived by this Court in Flock (India)'s case (supra). Once an Order of Assessment is passed the duty would be payable as per that order. Unless that order of assessment has been reviewed under Section 28 and/or modified in an Appeal that Order stands. So long as the Order of Assessment stands the duty would be payable as per t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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