ORDER
S.K. Bhatnagar, Vice-President
1. These are the appeals filed against the order of Collector (Appeals) dated 30-11-1984.
2. The learned counsel stated that these three appeals relate to the leviability of additional duty of Customs on Carbon electrodes imported by the appellant firm for use in the dry battery cells and manufactured at the factory situated at Bhopal.
3. The appellants have contested their classification and the rival entries are TI 67 and 68. It was their contention that they are not graphite rods but only carbon rods. They are classifiable under T.I. 68 and not T.I. 67.
4. The learned Collector (Appeals) has dismissed their appeals as premature without going into the merits of the case on the ground that the appellants had not filed a refund claim but have filed straightaway these appeals. The learned Collector has observed that “in case the classification was incorrect as claimed by the appellant, the proper course was to file a claim of refund and if the claim was rejected and their rejection was incorrect then only the appeals could have been filed.
5. The learned counsel contended that since the classification was in dispute and they were aggrieved of the department’s assessment, therefore they had a right to file an appeal against the incorrect classification and it was incorrect on the part of the Collector (Appeals) to treat the petition as premature.
6. The learned DR reiterated the department’s view as expressed by the learned Collector (Appeals) in his observations.
7. We find that the learned counsel’s contentions have a strong force. In cases where the classification is disputed by the assessee, it is open to the assessee to file an appeal directly to the Collector (Appeals) if the bill of entry has been assessed and finalised by an officer below the rank of Collector because in terms of Section 128 CA 62 “any person aggrieved by any decision or order passed under this Act by an officer of Customs lower in rank than a Collector of Customs, may appeal to the Collector” and in the instant case it has been stated before us that the Assistant Collector of Customs, Bombay permitted their removal for re-warehousing and the ex-bond bill of entry was filed before the Superintendent of Customs and Excise and it is the classification which was under challenge. A question of refund (or demand for that matter) could arise only after the classification has been finally determined; And an order regarding the classification was challengeable in appeal in view of Section 128 cited above.
In view of the above position we set aside the order of Collector (Appeals) and remand these matters back to him with the direction that he should decide the cases on merits and pass appropriate orders.
