ORDER
Archana Wadhwa, Member (J)
1. The dispute involved in the present appeal relates to the correct classification of super-cutler (T. Pruning) machine. Whereas the appellants’ contention is that the impugned goods imported by them and are properly classifiable under Heading 84.33, the Revenue has assessed the same under Customs Tariff Heading 8467.89. Being aggrieved with the order passed by the lower authorities, the appellants had filed an appeal there against before Commissioner (Appeals).
2. Vide his impugned order Commissioner (Appeals) has observed that since the appellants had not paid duty under protest or has raised any objection against the classification, they are estopped from contesting the same. He has relied upon the Tribunal’s decision in the case of Vikas Spinners v. CC, Lucknow – 2001 (128) E.L.T. 143 (T) (Delhi) wherein it was observed that loaded value once accepted and duty having been paid without protest or objection the importer is estopped from challenging the same subsequently.
3. However, we find that the ratio of the decision is not applicable to the facts of the instant case. In the case of M/s. Vikas Spinners, the value of the goods was loaded in consultation with the special attorney of the appellants who agreed to the same and signed an affirmation on the back of the bill of entry. Subsequently the appellant had paid duty on the loaded value and had cleared the goods. It was in these circumstances that the Tribunal observed that the appellants, in the proceedings before the Tribunal cannot challenge valuation aspect. In the instant case we find that it has been the appellants’ case right from the beginning that the goods imported by them are properly classifiable under Heading 84.33. It is only for saving the demurrage, the appellants cleared the goods by paying duty on the basis of the classification adopted by the Revenue. The fact of filing of appeal before Commissioner (Appeals) against the orders of the lower authorities is a form of protest only and is indicative of the fact that the appellants are not happy with the classification adopted by the Revenue. As such the Commissioner (Appeals) was not justified while dismissing the appeal of the appellants on this short ground. Accordingly we set aside the impugned order and remand the matter to the Commissioner (Appeals) for decision on merits.