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Judgment
Revenue is in appeal along with application of stay against the impugned order.
Heard both the sides.
After hearing both the sides we find that stay application as well as appeal can be disposed of at this stage. Therefore, both are taken up together
for final disposal.
The facts of the case are that the respondent paid duty on assessment of Bill of Entry by themselves without claiming benefit of exemption
notification no.21/2002. Later on, they realized that they are entitled for benefit of said notification filed a refund claim which was rejected by the
Adjudicating Authority on the ground that the respondent has not challenged the assessment of Bill of Entry. Therefore, in the light of the decision in
the case of Priya Blue Industries Ltd. Vs. C.C. (Preventive)-2004 (172) E.L.T. 145 (SC a)nd in the case of C.C.E. Vs. Flock (India) Pvt. Ltd.- 2006
(6) E.L. T. (SCC) respondent is not entitled for refund claim. The said order was challenged by the respondent before the Ld. Commissioner (A). In
the impugned order, Ld. Commissioner (A) held that there is no dispute that the exemption would be available to the respondent. They have made
proper declaration and it was the incumbent on the Adjudicating Authority to grant such benefit in the face of the product being legible and having
imported having being failed to claim the same. In these circumstances, Ld. Commissioner (A) remanded back the matter to the Adjudicating
Authority for re-consideration.
Said order is challenged before us by the Revenue on the ground that:
a) Ld. Commissioner (A) has no power to remand matters to the Adjudicating Authority.
b) By fiiling refund claim respondent has sought to change classification which cannot be done at this stage.
We have considered the submission made by the Ld. AR that Commissioner (A) has no power to remand the matte back to the Adjudicating
authority. At the same time we also observed that the Adjudicating authority has not commented on the merits of the classification which Revenue
sought to challenge by way of this appeal before us. In these circumstances, exercising our power we remand this matter to the Adjudicating
Authority to consider all the issues raised before us by both the sides. It is pertinent to mention here that Adjudicating authority shall grant reasonable
opportunity to both the sides to defend their case.
With these terms the stay application as well as appeal are disposed of by way of remand.
(Dictated and pronounced in the open court)