Customs, Excise and Gold Tribunal - Delhi
Kopran Ltd. vs Commissioner Of Customs, New Delhi on 24 January, 2002
Equivalent citations: 2002(80)ECC341, 2002(141)ELT694(TRI-DEL)
ORDER V.K. Agrawal, Member (T)
1. In this appeal, filed by M/s. Kopran Ltd., the issue involved is whether the benefit of Notification No. 11/97-Cus., dated 1-3-97 is available to the product imported by them.
2. Shri K.K. Anand, learned Advocate, submitted that the Appellants imported 4 Analysers M-644 NA/K/CL and filed Bill of Entry dated 23-4-98 and were assessed to Customs duty @ 20% + 5% + 13%; that subsequently they filed a refund claim claiming the benefit of exemption under Notification No. 11/97-Cus. (Sri. No. 210 read with List No. 22) (Sri. No. 66) which provides exemption to Blood Gas Analyser, Sodium Potassium Analyser. Auto Analyser for Enzymes, Drug Bio-chemical investigation or combination of two or more of aforesaid; that their refund claim has been rejected under the impugned order on the ground that exemption is not available to the Auto Analyser for Bio-chemical investigation only since the benefit is available to Auto Analyser which does analysts for enzymes drug level and bio-chemical or at least a combination of two of these. The learned Advocate, further, submitted that the Analyser imported by them for measuring any K, CL in the blood of the patient and accordingly it was analyzer for biochemical investigation covered by exemption notification; that as per book tilled Bio-Chemistry, written by Harold Varley, M.Sc., F.R.C., Sodium Potassium and Chloride together with inorganic ions, particularly magnesium, bicarbonate and phosphate were important constituent body fluids; that the benefit of this notification was extended to them in respect of identical analyzer cleared under Bill of Entry dated 3-11-97.
3. Countering the arguments Ms. Krishna Mishra, learned SDR, submitted that the benefit of the notification was not claimed by the appellants in the Bill of Entry. Bill of Entry was assessed by the Custom Department and accordingly duty liability was discharged by the Appellants. It has been held by the Tribunal in the case of Khemka Travels v. Collector of Customs, 1992 (57) E.L.T. 458; that the order passed on Bill of Entry is to be treated as an Order of assessment which is appealable before the proper forum; that again in the case of Commissioner of Customs v. Hari & Co., 1997 (92) E.L.T. 518 it was held that Order of assessment in Bill of Entry has to be treated as an appealable order. She further submitted that the appellants have not challenged the assussment order by way of filing an appeal and accordingly they cannot file a refund claim; She relied upon the decision in the case of CCE v. Flock (India) Pvt. Ltd. [2000 (120) E.L.T. 285 (S.C.)l wherein it was held that in a case where an adjudicating authority has passed an order which is appealable under the statute and the party aggrieved do not choose to exercise the statutory right of filing an appeal it is not open to the party to question the correctness of the Order of the Adjudicating Authority subsequently by filing a claim for refund. This decision has been followed by the Tribunal in the case of Gokul Metallizers Pvt. Ltd. v. Commissioner of Customs, Mumbai, 2001 (129) E.L.T. 157 (Tri. - Del.). She finally submitted that the impugned goods imported by them is only analyzer for Sodium Potassium and Chloride which is not covered by Srl. No. 66 of List No. 22 of the Notification No. 11/97.
4. We have considered the submissions of both the sides. It is not in dispute that the benefit of Notification No. 11/97 was not claimed by the Appellants at the time of filing of Bill of Entry. The assessment ordered by the department on the Bill of Entry has also not been challenged by them. In view of the Tribunal's decision in the cases of Khemka Travels and Hari & Co. order of assessment on a Bill of Entry is an appealable order against which appeal is required to be filed if a party is aggrieved by the same. As no appeal has been filed the appellants cannot claim refund as held by the Supreme Court in the case of Flock India Ltd. [2000 (120) E.L.T. 285 (S.C.)]. We, therefore, reject the appeal filed by the Appellants on this ground without going into the merits of the matter.