By TIOL News Service

CHENNAI, MAY 31, 2016: THE appellant had imported water dispensers from china, classified under CTH 84186990 and assessed on RSP value @ 12.5%+16%+2%+2%+4%. After payment of duty amounting to Rs.24,11,810/-, the appellants filed refund claiming that the impugned items do not attract RSP assessment in terms of Notification 13/02 CE(NT). The Adjudicating Authority rejected the claim on the ground of jurisdiction and without going into the merits of the case. On appeal, the Commissioner (A) remanded the matter to the original authority. The remand order of Commissioner (A) was challenged by the revenue before the CESTAT and the Tribunal found no error in the order of Commissioner (A). In remand proceedings, the original authority allowed the refund and the revenue appeal was allowed by the Commissioner (A) who held that the refund is not admissible as the importer had not challenged the assessment. The importer is before the Tribunal.

After hearing both sides, the Tribunal held:

++ This is a case where the adjudicating authority in his order in original dt.10/11/2010, had clearly stated that the appellant had paid excess duty and the entry 8418 covered only refrigerators and not water dispensers is an unassailable finding. The Adjudicating Authority had passed a reasoned and speaking order and in the first order passed by the Commissioner (Appeals) in order dated 27/9/2007, directed the Adjudicating Authority to consider the issue in terms of Section 27 of the Customs Act, which was also upheld by the Tribunal. The Assistant Commissioner in his order dated 10/11/2010, had no other option except to decide the refund application. Based on such an order, the Assistant Commissioner has granted relief. The impugned order cannot be sustained for the reason that the Commissioner (Appeals) has merely stated that the appellant has not challenged the assessment. In absence of any ground on merit, that the classification arrived at by the Adjudicating Authority is erroneous, which has not been done in the instant case, the impugned order is liable to be set aside and the order passed by the Original Authority granting refund is restored.

(See 2016-TIOL-1287-CESTAT-MAD)