T.K.JAYARAMAN,MEMBER (T) - (1.)THIS is Revenues appeal against Order -in -Appeal No. 263/2003, dated 18 -6 -2003 passed by the Commissioner of Customs (Appeals), Bangalore.
(2.)BRIEF facts of the case are as follows : The respondents imported certain parts of the base station which have populated PCBs in the form of GPORC -2. The respondents claimed exemption under Notification No. 16/2000 -Cus. (Sl. No. 267) which reads as under : - 2678529.90Parts (including Populated PCBs) of -
(i) transmission apparatus other than apparatus for radio broadcasting or television transmission apparatus incorporating reception apparatus; The original authority disallowed the exemption on the ground that the exemption is meant only for transmission apparatus. The Commissioner (Appeals), in his Order -in -Appeal, after going through the subsequent Notification No. 17/2001 -Cus. (Entry 292) held that the intention of the Government is to cover parts and both transmissions and reception apparatus which is evidenced by the fact that the subsequent Notification clearly provides for the description transmission apparatus incorporating reception apparatus as a separate entry, which reads as under : - 2928529.90Parts (including Populated PCBs) of -

(ii) transmission apparatus other than apparatus for radio -broadcasting or television; transmission apparatus incorporating reception apparatus; The respondents who cleared the goods initially on payment of duty claimed refund on the ground that they are entitled for the refund amount as duty has been paid under protest. The Commissioner held that the appellants are entitled for the benefit of the Customs exemption Notification. The original authority held that the respondents are not entitled for the exemption and also rejected the refund claim on account of time -bar. The Commissioner (Appeals) allowed the appellants appeal and held that the refund claim is not barred by limitation as the appellants have paid the duty under protest. He has referred to the letter dated 18th September, 2000 written by the respondents to the Assistant Commissioner of Customs, Air Cargo Complex, Airport Exit Road, Bangalore. This letter bears an endorsement of the concerned officer of the department. Revenue has come in appeal against the Order -in -Appeal on the following grounds : -

(i) The Commissioner of Customs (Appeals) has taken a view that the adjudicating authority has erred in interpreting Entry 267 of Notification No. 16/2000 -Cus., dated 1 -3 -2000 inasmuch as after the expression radio broadcasting or television, a semicolon needs to appear as the latter description viz., transmission apparatus incorporating reception apparatus is a separate description and would not qualify radio broadcasting or television and also that the same entry after television, providing for transmission apparatus incorporating reception apparatus as a separate description and in view of the same the imported items were eligible for exemption.

Whereas it is evident on record that the exemption/concessional rate of duty under Notification No. 16/2000 dated 1 -3 -2000 covers only parts of transmission apparatus and would not cover parts of reception apparatus as the intention of the Notification has to be interpreted strictly according to the phrases and wordings of the Notification, addition or construing that a semi -colon is missing would defeat the very purpose and intention of the notification. As such, the Commissioner of Customs (Appeals) decision in construing semicolon after the word Television at Sl. No. 267 of Notification 16/2000 -Cus., dated 1 -3 -2000 based on the inference drawn from the subsequent Notification No. 17/2001 -Cus., dated 1 -3 -2001 of Sl. No. 292 on the ground that of obvious error of missing semicolon cannot be accepted.

(ii) As regards the question of time -bar, Commissioner of Customs (Appeals) has observed I do not agree with the view of the original adjudicating authority that the existence of letter is conclusively proved. The letter dated 18th September 2000 to the Assistant Commissioner, Air Cargo Complex written by the Applicants is quite clear and also bears an endorsement of the concerned officer of the Department which is not disputed.

It is clear on record that the importer has not produced the original copy of the protest letter dated 18 -9 -2000 addressed to the Assistant Commissioner, Air cargo complex, Bangalore as an evidence nor produced corroborative evidences such as entry about the payment of duty under protest either on bill of Entry or on TR 6 Challan. Also no entry to this effect is forthcoming from the protest Register maintained in the Air Cargo Complex, Bangalore. As such the refund claim filed on 9 -4 -2001 for Rs. 13,58,953/ - in respect of Bill of Entry No. 188826, dated 18 -9 -2000 is after six months and hence the same is hit by limitation of time. Thus, the Commissioners (Appeals) decision in allowing the claim of refund on the ground that the endorsement of the concerned officer of the department on the protest letter dated 18 -9 -2000 to the AC, ACC, Bangalore has not been disputed by the Department cannot be accepted.

(iii) Further the importer needs to challenge an order of assessment for issuance of speaking order as a right course of remedy instead of preferring an refund claim under Section 27 in terms of latest decision in the case of Faxtel Systems (India) Pvt. Ltd. v. Commissioner of Customs, Cochin reported in 2003 (155) E.L.T. 515 (Tribunal -Bangalore).

(3.)SHRI Ganesh Hanuvar, ld. SDR appeared for the Revenue and Smt. Rukmani Menon, ld. Counsel for the respondents.
We have gone through the records of the case carefully. The goods imported are described as AWB, 44 Nos. of GPROC2 Cards, basically parts of Base Station Systems. After going through the Notification, we agree with the interpretation of the Commissioner (Appeals) that the Notification provides for parts of reception apparatus also. The inference drawn by him after going through the amended entry in Notification No. 17/2000 is in the right sprit. Hence, we uphold the Commissioners (Appeals) decision regarding the entitlement of the goods to the exemption Notification. As regards the time -bar, we find from the copy of the letter of protest that there is an endorsement by the Superintendent. It is not the case of the department that the endorsement has not been made by the departmental Superintendent. In the absence of such rebuttal, we agree with the Commissioner (Appeals) that duty has been paid under protest. Hence the claim is not hit by time -bar. As regards the Revenues contention that the order of assessment has to be challenged for entitlement to the refund, we find that even at the time of import the respondents has claimed the benefit of exemption Notification which was not extended to them. In this circumstance the letter indicating payment of duty under protest is itself challenge to the assessment of the Bill of Entry. Hence the Order -in -Appeal is legal and proper. Hence the Revenue appeal is rejected. (Pronounced and dictated in open Court)