2006 (8) TMI 76

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....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....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....tries Ltd. v. C.C. (Preventive), reported at 2004 (172) E.L.T. 145 (S.C.). 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....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....r 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 duty 'under protest' or not. It was for the appellant to challenge the assessment done by the Assessing Officer on the bill of entry and n....