Judgment:
1. There are two applications before us, both filed by the Department (appellant), one for condonation of delay of the appeal and the other for stay of operation of the impugned order. There is no representation for the respondents despite notice. We have examined the records and heard Id. SDR.2. The appeal is delayed by 32 days. This delay is condoned for want of opposition.
3. It appears to us that the appeal itself requires to be finally disposed of at this stage. Accordingly, after dismissing the stay application, we proceed to deal with the appeal.
4. The respondents had imported "silk fabric" and filed a Bill of Entry in the EDI section of the Customs House on 9-3-2006 for its clearance.
No benefit of any exemption notification was claimed. The Bill of Entry was assessed, accordingly. The order of assessment, however, was appealed against by the as-sessee on the ground that they were entitled to the benefit of Notification No. 20/2006-Cus. which granted unconditional exemption from payment of CVD on the above goods. Id.
Commissioner (Appeals) granted this benefit and directed the lower authority to reassess the goods. The appellate authority relied on the Apex Court's judgment in Shree Hari Chemicals Export Ltd. v. UOI 2006 (193) E.L.T. 257 (S.C.), wherein it had been held that the benefit of proforma credit of duty paid on input was not to be denied to the assessee on the ground that such benefit had been claimed by them under a different provision. Id. SDR has reiterated the grounds of this appeal.
5. In the memorandum of appeal, the appellant seeks to distinguish the case considered by the Apex Court from the present case. It is submitted that, in the cited case, the benefit was actually claimed by the party albeit under a wrong provision, whereas; in the present case, the benefit of the Customs notification was not claimed at all. After a perusal of the Apex Court's judgment, we are not impressed with the distinction sought to be struck by the appellant between the case of Shree Hari Chemicals Export Ltd. (supra) and the case on hand. In the said case, credit of duty paid on input was claimed under Rule 57A, but, later on, they claimed it as proforma credit under Rule 56A of the Central Excise Rules, 1944, the correct provision of law which ought to have been invoked for the benefit. All the Departmental authorities and this Tribunal held against the assessee. The Apex Court allowed the assessee's appeal after holding that a benefit available to the assessee was not to be denied to them on the ground that they had claimed it under a wrong provision. We are of the view that the ratio of the Apex Court's decision is applicable to the present case also as rightly held by learned Commissioner (Appeals). Claiming a benefit under a wrong provision of law is comparable to not claiming (under the correct provision) at all. The respondents claimed the benefit of Customs Notification No. 20/2006 in respect of CVD at a later stage.
The appellant has no case that the respondents were not eligible for the benefit. On these facts, we have to sustain the decision of the Commissioner (Appeals) and it is ordered accordingly.