At, Customs Excise Service Tax Appellate Tribunal West Zonal Bench At Mumbai
By, THE HONORABLE JUSTICE: RAMESH NAIR
By, MEMBER AND THE HONORABLE JUSTICE: RAJU
For Petitioner: Trupti D. Chavan, Assistant Commissioner (AR) And For Respondents: J.S. Sanghvi, Consultant
1. The respondent has imported three consignments of Rayon Yarn which was entitled to effective rate of duty as mentioned under Notification No. 69/2011-Cus. dated 29-7-2011 (Sr. No. 370). While finalizing the assessment, the assessing officer has not granted the
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benefit of Notification No. 69/11-Cus. thereby resulted in payment of excess duty. Being aggrieved by the assessment of Bills of Entry, the respondent filed appeal before the Commissioner (Appeals), who after considering the facts and the various judgments whereby it was held that even though the benefit of Notification was not claimed at the time of assessment, the same can be claimed at a later stage. Accordingly, the assessment order was set aside and the assessing authority was directed to re-assess the same to consider the exemption granted by Notification No. 69/2011-Cus. Being aggrieved by the impugned order, the Revenue filed the present appeals on the ground that firstly there is no assessment order passed by proper officer, therefore, the appeal before the Commissioner (Appeals) is not maintainable. The onus of claiming the benefit of notification squarely rest on the assessee. Since the notification is based on import from a particular country, once the importer fails to claim the notification, the department is also protected from verifying the veracity of the claim during imports based on the goods itself.
2. Ms. Trupti D. Chavan, Learned Asstt. Commissioner (AR) appearing on behalf of the Revenue reiterates the grounds of appeal.
3. Shri J.S. Sanghvi, Learned Consultant appearing on behalf of the respondent submits that the Commissioner (Appeals) has rightly directed the assessing officer to re-consider the eligibility of Notification No. 69/2011-Cus as the same was not considered by the assessing officer. On careful consideration of the submissions made by both sides, we find that the respondent could not claim the benefit of Notification which was available to the goods imported from Japan. As per the certificate of origin, there is no dispute that the goods were imported from Japan. In the impugned order, the Learned Commissioner (Appeals) has only directed to re-assess the Bills of Entry by considering the exemption Notification No. 69/2011-Cus. We are of the view that any beneficial notification even if at the time of clearance of goods is not claimed, the same can be claimed at a later stage. Therefore, we do not find any infirmity in the impugned order, which is only directed the assessing authority to reconsider the Bills of Entry in the light of Notification No. 69/2011-Cus. Accordingly, we uphold the impugned order and dismiss the Revenue's appeals