Customs duty appeal allowed on incorrect exemption serial number; Commissioner's order set aside for fresh decision.

The Tribunal set aside the Commissioner of Customs (Appeals)'s order due to a failure to apply legal provisions. The Commissioner did not consider the appellant's claim for exemption under the correct serial number, leading to an excess duty payment issue. The Tribunal found a total non-application of mind by the Commissioner and remanded the matter for a fresh decision within two months, allowing the appeal by way of remand.

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Issues involved:
1. Excess duty payment on Bill of Entry No. 331107
2. Failure to apply legal provisions by the Commissioner of Customs (Appeals)

Issue 1: Excess duty payment on Bill of Entry No. 331107
The appellant, represented by Shri A.K. Bhattacharjee, Advocate, contended that they had paid excess duty of Rs. 1,28,558 on 19-3-07 due to erroneously declaring Sl. No. 18 instead of Sl. No. 480 of Notification No. 21/2002-Cus, dated 1-3-2002. Despite the mistake, they promptly filed an appeal to the Commissioner of Customs (Appeals) after detecting the error. The lower appellate authority, however, in its order dated 7-8-07, upheld the assessment based on the appellant's declaration, stating that they were not aggrieved by the assessment. The appellant argued that the lower authority failed to consider their legal claim for exemption under the correct serial number, leading to the excess duty payment issue.

Issue 2: Failure to apply legal provisions by the Commissioner of Customs (Appeals)
The Tribunal observed a total non-application of mind by the Commissioner in passing the impugned order. It was evident that the appellant's filing of an appeal indicated their dissatisfaction with the assessment. The Tribunal emphasized the settled law that unless the assessment is varied, the appellant cannot claim a refund of excess duty. The Commissioner should have been aware of this legal principle established by the Apex Court. By not addressing the appellant's grievance and considering their eligibility for exemption under the correct serial number, the Commissioner failed in his statutory duty. Consequently, the Tribunal set aside the order and remanded the matter to the Commissioner for a fresh decision on merit within two months from the date of the order receipt, allowing the appeal by way of remand.

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