COMMISSIONER OF CUSTOMS Vs. SPICE COMMUNICATION LTD.

JUDGEMENT

(1.) HEARD both sides. The revenue filed this appeal against the Order -in -Appeal passed by the Commissioner (Appeals).

(2.) BRIEF facts of the case are that the appellant made import of certain goods and claimed the benefit of Notification No. 17/2001 -Cus. The assessing authority disallowed the benefit of the notification and passed the assessment order. The present respondent had not filed any appeal against the assessment order and filed a refund claim in which the assessment order was challenged on the ground that they are entitled for the benefit of notification. The Commissioner (Appeals) in the impugned order allowed the appeal filed by the present respondent on the ground that the assessee can challenge the assessment order by filing a refund claim.

(3.) THE contention the of present respondent is that the principle of Flock (I) Pvt. Ltd. decision is applicable in respect of Section 11 of Central Excise Act whereas in the present case the refund is filed under Section 28 of the Customs Act and the respondent relied upon the decision of the Hon'ble Supreme Court in the case of Karnataka Power Corporation Ltd. v. CC (Appeals), Chennai, 2002 (83) ECC 518 (SC) : : 2002 (143) ELT 482.