ORDER
M.V. Ravindran, Member (J)
1. This miscellaneous application is filed by the applicant asking for the review of the order of the Tribunal dated 17th May, 2006 and recalling the same.
2. In Customs Appeal No. 808 of 2004, the Tribunal vide its final order No. 760/06, dated 17th May, 2006 decided the appeal finally. The appeal was dismissed by the Tribunal after considering the grounds of appeal as filed by the appellant/applicant. The applicant vide this miscellaneous application seeks to recall said order on the following grounds:
5. It is respectfully submitted that the Order dated 17th May, 2006 passed by this Hon’ble is otherwise requires review/reconsideration is so far as this Hon’ble Tribunal vide the said Order has held in para 3 and para 5 which states that the “Appellant did not file any Appeal against this assessment, nor did he pay the customs duty under protest.” It is submitted that the said finding of facts from the record are contrary to the record.
6. It is submitted that the Applicant/Appellant has been pursuing the matter before this Hon’ble Tribunal and his keen and wishes to make legal submissions in the Appeal on the basis of legal proposition and judgment rendered by this Hon’ble Tribunal in the case of Faxtel (India) Pvt. Ltd. v. Commissioner of Customs (Cochin). The delay in reaching and absence before the Hon’ble Tribunal on the date of hearing is due to the circumstances a stated above. The Applicant/Appellant would suffer and greatly prejudice in absence of non-consideration of the legal submissions/hearing on behalf of the Applicant/ Appellant.
3. Learned advocate appearing on behalf of the appellant submits that the counsel for the applicant/appellant was present on 15th May, 2006. The counsel could reach the court at around 1145 a.m. due to break down of car. It is his submission that there is an error apparent in the order of the Tribunal in as much that the duty was paid by the appellant/applicant ‘under protest’ while the Tribunal in its order dated 17th May, 2006 has recorded that duty was not paid ‘under protest’. It was also submitted that the appellant were pursuing the matter right from : the beginning by filing the appeal before the Tribunal in respect of the rejection of the refund claim and hence the order dated 17th May, 2006 is to be recalled and the appeal has to be heard once again.
4. Learned DR submits that there is no reason to recall the order as the said order has been passed as merits of the case and on the basis of the judgment of the Hon’ble Supreme Court in the case of Priya Blue Industries Ltd. v. C.C. (Preventive), reported at .
5. Considered the submissions made at length by both sides and perused records. I find that the appellant is praying for review the order dated 17th May, 2006 and grant hearing on merit and pass any other order that the Tribunal may deemed fit. I find that in this case the Tribunal vide its order dated 17th May, 2006 has held that since the appellant had not challenged the assessment of the bill of entry and nor did they pay duty ‘under protest’ the route of refund claim cannot be undertaken to reopen the assessment. I find that the contention of applicants as regards the non-payment of the duty ‘under protest’ is correct and a valid one. After persuing the records, I find that the applicant had filed the refund claim before the lower authorities on the ground that they had deposited the duty ‘under protest’. To that extent, the order of the Tribunal dated 17th May, 2006 needs correction. At the same time, I find that the miscellaneous application filed by the appellant to review and recall the final order dated 17th May, 2006 is unwarranted only for this reason. The situation or the circumstances may not change by even considering the fact that the appellant did pay the duty ‘under protest’. The issue involved in this case is regarding the classification of the product imported by the applicant/appellant, wherein the bill of entry filed by the appellant was assessed by the Assessing Officer enhancing the duty structure. This can be ascertained from paragraph ‘3’ of the Tribunal’s order dated 17th May, 2006 which reads as under:
3. The appellant imported goods namely U.P.S. and filed bill of entry under Chapter Heading 8504.40 which attracted customs duty of 25% basic, 10% surcharge, 16% C.V.D., and 4% SAD. The assessing officer assessed the goods under Chapter Heading 8543.89 attracting duty 35% basic, 10% surcharge, 16% CVD, and 4% SAD. The appellant did not file any appeal against this assessment, nor did he pay the customs duty ‘under protest’. The appellant filed refund claim subsequently after the decision of the Tribunal on the classification of the said goods under Chapter Heading 8504 in some other case. The adjudicating authority rejected the refund claim and on appeal the Commissioner (Appeals) also concurred with the views of the adjudicating authority. Hence, this appeal.
6. As can be seen from the above reproduced paragraph, that the appellant did not challenge the classification of the product from Chapter Heading No. 8504.40 to 8543.89 in the absence of any challenge to this re-classification and the assessment done by the Assessing Officer, the Appellant’s refund claim was correctly rejected by the lower authorities. It would not be of any consequence whether the appellant had paid the duly ‘under protest’ or not. It was for the appellant to challenge the assessment done by the Assessing Officer on the bill of entry and not merely pay the duty ‘under protest’. In this case, the appellant after paying the duty ‘under protest’ did, not proceed ahead and challenge the assessment of the goods imported by him but only filed refund claim. Filing of refund claim, in itself cannot be considered as challenge to classification of the goods, assessed finally. On this, background, Tribunal relying upon the judgment of the Hon’ble Supreme Court in the case of Priya Blue Industries Ltd. (Supra) had dismissed the appeal filed by the appellant/applicant against the rejection of the refund claim.
7. As I have noted that there is an error in the order of the Tribunal, as regards the payment of the duty by the appellant/applicant, paragraph ‘5’ of the Tribunal’s order dated 17th May, 2006 reads as under:
5. Heard learned D.R. and considered the submissions made by him and perused the record. I find from the record that the appellant while clearing their goods on importation accepted the revised classification of the assessing officer under Chapter Heading No. 8543.89 and discharged the duty liability as assessed. They did not challenge the assessment nor did they pay the duty ‘under protest’. I find the refund claim was filed after the decision of the Tribunal deciding the classification of the product imported by the appellant under Chapter Heading 8504 (in some other matter). Having not challenged the assessment of the assessing officer earlier, it is not open to take the route of the refund claim to reopen the assessment which has attained finality.
8. Since the appellant has demonstrated that they had paid the duty ‘under protest’, the said paragraph needs to be read as under:
5. Heard learned D.R. and considered the submissions made by him and perused the record. I find from the record that the appellant while clearing their goods on importation accepted the revised classification of the assessing officer under Chapter Heading No. 8543.89 and discharged the duty liability as assessed. They did not challenge the assessment but paid the duty ‘under protest’. I find the refund claim was filed after the decision of the Tribunal deciding the classification of the product imported by the appellant under Chapter Heading 8504 (in some other matter). Having not challenged the assessment of the assessing officer earlier, it is not open to take the route of the refund claim to reopen the assessment which has attained finality.
9. But for the above change, the order dated 17th May, 2006 is correct and does not require any review as indicated in above paragraphs.
10. Accordingly, the Tribunal’s final order dated 17th May, 2006, specifically of paragraph No. ‘5’ will read as indicated above, but for this change the miscellaneous application filed by the applicant is dismissed.
(Pronounced on 6-10-2006)