Custom, Excise & Service Tax Tribunal
M/S. Joneja Bright Steels Pvt. Ltd vs C.C.(Icd), New Delhi on 8 July, 2015
IN THE CUSTOMS, EXCISE & SERVICE TAX
APPELLATE TRIBUNAL
WEST BLOCK NO.2, R.K. PURAM, NEW DELHI 110 066.
Date of Hearing 08.07.2015
For Approval &Signature :
Honble Mr. R.K. Singh, Member (Technical)
Honble Ms. Sulekha Beevi C.S., Member (Judicial)
1.
Whether Press Reporter may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
No
2.
Whether it would be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
Yes
3.
Whether Lordships wish to see the fair copy of the order?
Seen
4.
Whether order is to be circulated to the Department Authorities?
Yes
Appeal No.C/82/2009-CU[DB]
[Arising out of Order-in-Appeal No.CC (A) Cus/ICD/483/2008, dated 20.11.2008 passed by the C.C.(Appeals), New Delhi]
M/s. Joneja Bright Steels Pvt. Ltd. Appellant
Vs.
C.C.(ICD), New Delhi Respondent
Appearance Mr. NK Sharma, Advocate - for the appellant Ms. Suchitra Sharma, DR - for the respondent CORAM: Honble Mr. R.K. Singh, Member (Technical) Honble Ms. Sulekha Beevi C.S., Member (Judicial) Final Order No.52286/2015, dated 08.07.2015 Per Mr. R.K. Singh :
Appeal has been filed against Order-in-Appeal dated 20.11.2008 which upheld the Order-in-Original dated 29.08.2008 in terms of which the refund claim of the appellant was rejected.
2. The facts of the case are that the appellant imported goods declared as wire rods in coils and filed Bill of Entry No.692031, dated 06.05.2008 claiming classification under the sub-heading 72210090. The Customs assessed the goods accepting the classification claimed by the appellant. The goods were then cleared on 09.05.2008. The appellant filed a refund claim on 19.05.2008 on the ground that they were entitled to the benefit under Notification No.56/2008-Cus, dated 29.04.2008, which was rejected by the primary adjudicating authority as well as Commissioner (Appeals) on the ground that the appellant did not challenge the assessment citing judgements of Hon'ble Supreme Court in the cases of Priya Blue Industries Ltd. Vs. CC (Prev.) [2004 (172) ELT 145 (SC)] and CC Vs. M/s. Flock (India) Pvt. Ltd. [2000 (120) ELT 285 (SC)].
3. The appellant has contended that the assessment need not be challenged for claiming refund in view of the judgement of the High Court of Delhi in the case of Aman Medical Products Ltd. Vs. CC, Delhi [2010 (250) ELT 30 (Del.)]. It also stated that its goods were classifiable under CTH 72.13.
4. We have considered the contentions of the appellant. We find that in the case of Aman Medical Products Ltd. (supra), the High Court of Delhi has held that for claiming benefit of a Notification to which the appellant was entitled, the original assessment need not be challenged when higher duty was paid by inadvertence without taking benefit of Notification due to ignorance. We, however, notice that the issue here involves classification because Notification No.56/2008-Cus, dated 29.04.2008 is admittedly not applicable to goods classified under CTH 72139990. In these circumstances, the appellants contention that it was entitled to the benefit of Notification No.56/2008-Cus is totally untenable. As regards the contention that its goods were classifiable under 72.13 (which is covered under exemption Notification No.56/2008-Cus), it is pertinent to note that the classification of the goods requires examination thereof and in absence of the goods there is no way the Customs would be able to take up the issue of classification at this stage. It needs to be reiterated that classification under 72.21 was claimed by the appellant itself and Customs found the said classification to be correct and accordingly assessed the Bill of Entry. In these circumstances, when Notification No.56/2008-Cus does not cover the heading 72.21 and the issue of classification of goods (specially in the absence thereof) cannot be undertaken while deciding the refund application and further that the assessment with regard to classification was never challenged by the appellant, we find no infirmity in the impugned order. The appeal is therefore rejected.
(R.K. Singh) Member (Technical) (Sulekha Beevi CS) Member (Judicial) SSK -3-