ORDER
T.K. Jayaraman, Member (T)
1. This appeal has been filed against Order-in-Appeal No. 26/2003-Cus., dated 27.1.2003 passed by the Commissioner of Customs (Appeals), Bangalore.
2. The brief facts of the case are as follows.
The appellant has been regularly importing Infrared-Gas Analyzer classifying the same under Chapter Heading 9027.50. However, the Revenue felt that the classification should be under 9027.10 and issued show cause notice proposing reclassification and demand of differential duty. The contention of the importer was that 9027.50 is more specific entry and the Department itself had been classifying it under the said classification. Moreover, there was no mis-declaration on the part of the appellant and hence the demand for differential duty, penalty is not sustainable. The Asst. Commissioner in his order re-classified the item under 9027.10 and demanded differential duty of Rs. 11,03,844/-, further he ordered confiscation of the goods with redemption fine of Rs. 1,00,000/- and imposed penalty of Rs. 50,000/-. The appellant approached the Commissioner (A). The Commissioner (A) passed the impugned order. He has upheld the order of the original authority. However, he set aside the penalty of Rs. 50,000/-. The Appellants challenge the impugned order and hence, they have come before this Tribunal for relief.
3. Shri M.S. Srinivasa, learned Advocate appeared for the appellant and Shri Ganesh Havanur, learned SDR appeared for the Revenue.
4. The learned Advocate urged the following points.
(i) The learned advocate submitted that except Bill of Entry No. 385762, all other Bills of Entry were finally assessed and the goods were cleared only after such final assessment. Such being the case, the issuance of show cause notice in respect of those 5 Bills of Entry amounts to reopening the assessment, which is not permissible. The Department ought to have filed an appeal under Section 129D with regard to the classification in respect of those 5 Bills of Entry instead of issuing the show cause notice.
(ii) The learned Advocate relied on the decision of this Bench in the case of Wipro Ltd. v. CC, Chennai vide Final Order Nos. 784, 785/2005, dated 17.5.2005
5. The learned SDR reiterated the findings of the lower authorities.
6. We have gone through the records of the case carefully. The appellant contended that the Department itself finalized the assessment in respect of all the Bills of Entry under classification 9027.50. They have not filed any application under Section 129D of the Customs Act to challenge the classification made under the Bills of Entry. In other words, the assessment orders have not at all been challenged. In these circumstances, it was contended that the demand is not sustainable. The Hon’ble Supreme Court in the case of Priya Blue Industries Ltd. v. CC, (Preventive) ‘have held that refund claim contrary to assessment order is not maintainable without order of assessment having been modified in appeal or reviewed under Section 28 of the Customs Act, 1962. Similarly, Revenue cannot demand duty unless the order of assessment has been reviewed. In the present case, it is seen that the goods have been cleared after classifying them under 9027.50. No action was taken to modify these assessment orders by filing review application. Therefore, following the ratio of Priya Blue (supra) case we hold that the demand is not sustainable. Hence we allow the appeal with consequential relief.
(Operative portion of this Order was pronounced in open court on conclusion of hearing)