Final Order No. A/436/2004-Nb(C), arising from Appeal No. C/489/2003-Nb(C). Case: Denso Haryana Pvt. Ltd. Vs Commissioner Of Customs, New Delhi. CEGAT (Customs, Excise & Gold (Control) Appellate Tribunal) & CESTAT (Customs, Excise and Service Tax Appellate Tribunal)

Case NumberFinal Order No. A/436/2004-Nb(C), arising from Appeal No. C/489/2003-Nb(C)
CounselFor Appellant: Shri R. Murli Dharan, Consultant, And For Respondent: Shri Kumar Santosh, Sdr,
JudgesShri S.S. Kang, Member (J) And V.K. Agrawal, Member (T)
IssueCustoms Act, 1962- Section 27
Citation2004 (176) ELT 548 (Tri. - Del.)
Judgement DateJune 07, 2004
CourtCEGAT (Customs, Excise & Gold (Control) Appellate Tribunal) & CESTAT (Customs, Excise and Service Tax Appellate Tribunal)

Order:

V.K. Agrawal, Member (T), (Northern Bench, New Delhi)

  1. M/S. Denso Haryana (P) Ltd. Have Filed This Appeal Against Order-In-Appeal Nos. 247 To 250/2003, Dated 5-8-2003 By Which The Commissioner (Appeals) Has Upheld The Rejection Of Refund Claims Filed By Them.

  2. Shri R. Murli Dharan, Learned Consultant, Submitted That The Appellants Is A Wholly Owned Subsidiary Of Denso Corporation, Japan; That All Imports Effected By Them From This Foreign Company Were Provisionally Cleared Treating Them As Related Persons; That The Goods Were Cleared On Payment Of Duty Based On The Classification As Stated In The Respective Bill Of Entry; That Subsequently The Appellants Found That The Classification Was Not The Correct One And On The Basis Of Correct Classification They Were Eligible For The Refund Of The Customs Duty And Accordingly They Filed The Refund Claims; That The Dy. Commissioner Under Letter Dated 5-6-2000 Has Informed Them That The Classification Which Is Subject-Matter Of The Refund Is Finalised By The Assessment Group And The Bills Of Entry In Reference Are Finally Assessed And As Such No Refund Is Due To Them; That The Dy. Commissioner Further Mentioned In The Said Letter That In Case Of Any Dispute With The Finally Assessed Classification They May Take Up The Matter With The Appropriate Authority And Since The Refund Is Not Due As Yet, Therefore, The Claim Is Rejected; That On Appeal Against The Said Order, The Commissioner (Appeals); Under The Impugned Order, Rejected Their Appeal Holding That The Said Letter Is Not An Order Nor A Decision Passed Under The Customs Act For The Purpose Of Filing Appeal In Accordance With The Provisions Of Section 128(1) Of The Act. The Learned Consultant, Further, Submitted That The Assessments Have Been Made Provisional On Account Of Dispute On Valuation And That The Assessments Still Not Have Been Finalised; That It Has Been Held By The Madras High Court In The Case Of Cce, Madras V. India Tyre & Rubber Co. Ltd., 1997 (94) ELT 495 (Madras) That Once An Assessment Is Provisional It Is Provisional For All Purposes And Not Necessarily Provisional In Respect Of A Particular Ground Considered; That The Similar Views Have Been Expressed By The Larger Bench Of The Tribunal In The Case Of Cce V. Pmt Machine Tools, 1991 (55) ELT 592 (Tribunal) Wherein It Has Been Held That "Once The Assessment Is Provisional, It Is Provisional For All Purposes." Reliance Has Also Been Placed On The Decision In The Case...

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