CHIEF ENGINEER (DESIGNS), Vs. CC

JUDGEMENT

(1.) THIS appeal by the assessee is against rejection of a refund claim. There is no representation for the appellants despite notice, nor any request of theirs for adjournment. We are inclined to dispose of this old appeal after examining the records, carefully considering the grounds of the appeal and hearing ld. SDR. Accordingly, the appeal is taken up.

(2.) M /s. Karnataka Power Corporation Ltd. (appellants) had cleared a consignment of 'epoxy insulated coils' along with accessories under Bill of Entry dt. 24.12.91 on payment of duties of customs as applicable to Heading 85.44 of the First Schedule to the Customs Tariff Act (for the purpose of Basic Customs Duty) and Heading 85.44 of the Schedule to the Central Excise Tariff Act (for the purpose of Additional Duty of Customs). Subsequently, they requested the jurisdictional Asst. Collector of Customs for re -assessing the goods under Heading 85.03 and granting consequential relief of refund of excess duty paid. This claim was rejected by the Asst.Commissioner who confirmed classification of the goods under SH 8544.11. The first appellate authority affirmed the decision of the lower authority. Hence the present appeal against the appellate Commissioner's order.

(3.) IT appears from the records that the assessment was not challenged by the assessee in accordance with law. They chose to challenge it by way of a refund claim, wherein they disputed the classification of the goods and wanted the goods to be classified under Heading 85.03 for the purpose of refund of "excess duty". Throughout the grounds of this appeal, the appellants have urged reasons for classifying the goods under Heading 85.03 and have also claimed the benefit of Customs Notification No. 172/89 dt. 29.5.89. Ld. SDR submits that such grounds could be raised only in an appeal filed against the assessment order and not in a refund claim filed without challenging the assessment. In this connection, ld. SDR relies on the apex court's judgment in Priya Blue Industries Ltd. v. CC (Preventive) , wherein it was held that refund claim contrary to assessment order was not maintainable under Section 27 of the Customs Act. Admittedly, in the present case, the appellants themselves classified the goods under Heading 85.44 (SH 8544.11) and cleared the goods voluntarily on payment of duty. The assessment order, which was countersigned by the Asst. Commissioner, was appealable, but it was not appealed against. The assessee chose to challenge the assessment by way of a refund claim, which was not permissible in law. The refund claim is clearly hit by the ruling of the apex court cited by ld. SDR.