Luminious Sales International Vs. Commissioner of Cus. - Court Judgment

Excerpt:
1. both appeals taken up for disposal with consent of both sides. the issue involved in both appeals is common. each of the appellants filed a claim before the assistant collector of customs (refunds) for refund of customs duty which according to it had been paid in excess. the basis for the claims was that silicon diffused chips imported by each of its appellants should be classified under heading 38.18 of the customs tariff, carrying a rate of duty lower than the rate of duty applicable to heading 85.41, which is how the goods were classified by the assessing officer. the assistant collector rejected the claims for refund on the grounds that the classification arrived at by the assessing officer was correct. the importer challenged this order before the collector (appeals). the collector (appeals) dismissed the appeal holding that in cases where classification decided by the custom house is disputed by the importer, and the correct procedure that should have been followed would have been to file an appeal against the order of classification, and that a claim for refund would not lie.hence these appeals.2. there is nothing in section 27 of the act that supports the collector (appeals) view. that section provides that any person claiming refund of any duty paid by him may make a claim for refund.the words of the section do not distinguish between a claim for refund arising out of incorrect classification, or a claim based on any other ground. this was one of the issues in the appeal before the tribunal in kirloskar electric co. v. cc - 1994 (71) e.l.t. 1019. the bench in its decision, has affirmed the view now expressed by us.3. we therefore allow the appeal and set aside the order of the commissioner (appeals). he shall decide the appeal on merits according to law.

Judgment:
1. Both appeals taken up for disposal with consent of both sides. The issue involved in both appeals is common. Each of the appellants filed a claim before the Assistant Collector of Customs (Refunds) for refund of Customs duty which according to it had been paid in excess. The basis for the claims was that silicon diffused chips imported by each of its appellants should be classified under Heading 38.18 of the Customs Tariff, carrying a rate of duty lower than the rate of duty applicable to Heading 85.41, which is how the goods were classified by the assessing officer. The Assistant Collector rejected the claims for refund on the grounds that the classification arrived at by the assessing officer was correct. The importer challenged this order before the Collector (Appeals). The Collector (Appeals) dismissed the appeal holding that in cases where classification decided by the Custom House is disputed by the importer, and the correct procedure that should have been followed would have been to file an appeal against the order of classification, and that a claim for refund would not lie.

Hence these appeals.

2. There is nothing in Section 27 of the Act that supports the Collector (Appeals) view. That section provides that any person claiming refund of any duty paid by him may make a claim for refund.

The words of the Section do not distinguish between a claim for refund arising out of incorrect classification, or a claim based on any other ground. This was one of the issues in the appeal before the Tribunal in Kirloskar Electric Co. v. CC - 1994 (71) E.L.T. 1019. The Bench in its decision, has affirmed the view now expressed by us.

3. We therefore allow the appeal and set aside the order of the Commissioner (Appeals). He shall decide the appeal on merits according to law.