Full Judgment
2. Ms. Reena Kher, Advocate appearing on behalf of the appellants referred to the Tribunal decision in the case of Kirloskar Electric Co.
Ltd. v. C.C., Madras - 1994 (71) E.L.T. 1019 (Tribunal) where the Tribunal had taken a view that the refund claim against the assessment in Bill of Entry or approval of classification list was maintainable and it was not necessary for the assessee to first challenge the said assessment in the B/E or approval of the C/List, by filing an appeal.
She submitted that the refund claim had been filed within time and in that claim the importers had challenged the C/List and the rate of duty and had sought the benefit of Notification No. 91/89-Cus. She pleaded for remand of the matter to the jurisdictional Commr., Central Excise.
3. Shri R.S. Sangia, JDR appearing on behalf of the respondent replied that in the into-Bond B/E, the importers had claimed the benefit of Notification No. 91/89-Cus. and that the benefit had been denied to them. They did not challenge this denial of the benefit of exemption Notification. When the Bill of Entry for home consumption was filed subsequently, no claim was made for the benefit of the said Notification No. 91/89-Cus. and as such it was not permissible to challenge the assessment which was made on the basis of the appellants' own declaration.
4. We have carefully considered the matter. In para 7 of his order, the Collector, Central Excise (Appeals) had agreed with the view of the appellants that the rate of duty and tariff valuation as prevalent on the date of clearance for home consumption was applicable. It is a fact that in the B/E for home consumption, the appellants had not claimed the benefit of Notification No. 91/89-Cus. and the assessment had been finalised on the basis of their declaration; however, as referred to by the learned Advocate, the Tribunal in the case of Kirloskar Electric Co. Ltd. had observed that the refund claim was maintainable against the assessment in B/E. We therefore, consider that the Appellate Authority should have gone into the merits of the case which had not been done in this case.
5. Thus without going into the merits of the case, we consider that this matter needs to be remanded back to the jurisdictional Commissioner, Central Excise (Appeals).UOI v. Food Specialities Pvt. Ltd. - 1998 (97) E.L.T. 402 (S.C.). The Appellate Authority may look into this decision of the Apex Court also while passing the Final Orders after affording an opportunity to the appellants to put up their case and then pass a speaking appealable order as per law.