TaxTMI 
TaxTMI 
2019 (2) TMI 1504
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....o 246103 dated 29.09.2009, 238061 dated 22.09.2009, 205037 dated 26.08.2009 and 196119 dated 19.08.2009. 2. Commissioner (Appeal) has in his order upholding the Assessment made held as follows: "3. The issue involved is classification of Germinated Oil Palm Seeds, Variety Tenera Hybrids (Elaeis Guineensis), imported by the appellants. The impugned goods were assessed under CTH 1201 00 10 with Basic Custom Duty @ 5% + Education Cess @ 3% + SAD @ 4%. The appellants' contention is that it should be assessed under CTH 1209 29 90 with BCD @ 5% + Education Cess @ 3%, with exemption of 4% SAD vide Notification No.20/2006-Cus dated 01.03.2006. They also claimed the benefit of Notification No.21/2002-Cus dated 01.03.2002. 4. It is observed that ....
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....y them would be under heading 1209 and not under heading 1207. The seeds imported by them were not meant for extraction of oil, hence they assumed the category of seeds in general. Once the imported goods were for the purpose of cultivation they ceased to be oil-seeds, hence squarely falls under the category of seeds which is classifiable under the heading 1209, which reads as "seeds, Fruits and Spores, of a kind used for sowing." 3.2 They have contended that the exemption Notification No 20/2006 dated 01.03.2006 is not applicable, and clearance should be granted by applying the Notification No 21/2002 dated 1st March 2002. In their view Chapter Note 3 of Chapter 12 is not applicable in their case, as that note would apply only when the go....
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.... is applied for clearance and assessment it should be applied as whole." 4.1 When the matter was listed for hearing, Appellant's sought leave from appearance and requested for decision on merits in view of the Tribunal Order No A/203/2012/STB/CE dated 09/10/2012. 4.2 We have heard Shri Bhushan Kamble, Assistant Commissioner (Authorized Representative) for the revenue. He distinguished the decision referred to by the Appellants in their written submissions stating that issue involved in the case referred by the appellants was in respect of refund claim, filed by the appellant claiming the benefit of exemption Notification No 21/2002, which they had not claimed at the time of filling/ assessment of Bill of Entry. As the refund claim was fi....
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....emise that as the appellant has not challenged the assessment of bill of entry, therefore they are not entitled for refund claim. 3. The ld. counsel for the appellant appeared and submitted that in this case by mistake appellant could not claim exemption under Notification 21/2002. It is admitted the appellant did not claim Notification 21/2002 but he has complied with all the condition of Notification at the time of filing of bill of entry. It is the duty of the assessing officer to assess the goods properly. In these circumstances, when he realised that they paid duty which was not warranted, therefore they are entitled to refund claim as held by Aman Medical Products - 2009-TIOL-566-H.C.-Del. = 2010 (250) E.L.T. 30 (Del.). 4. On the ....
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....owed by the lower authorities. However the issue that appellants have raised is two folds- i. The classification of the goods imported by them should have been done by following the classification as per the exemption notification and not by application of Chapter Note 3 to the Chapter 12. ii. Since no rate of duty has been mentioned under column 5 of the Notification No 21/2002-Cus, assessment should have been made allowing them full exemption from Additional Duty. 5.4 We are not in position to agree with the said submissions- i. as per rule 1 of "General Rules of Interpretation of Import Tariff" "1. The titles of Sections, Chapters and subchapters are provided for ease of reference only; for legal purposes, classification shall be ....