Per P.K. Das : The relevant facts of the case, in brief, are that the appellants filed Bill of Entry No. 117140 dated 2.11.2007 for import of 102.800 M.T. of Heavy Melting scrap and paid duty as per the assessed bill of entry on the basis of invoice.

2. Subsequently, the Customs officers examined the cargo and the said consignment was found as 95.430 M.T. as per the custodian's weighment slip in respect of the containers. Thus, a quantity of 7.370 M.T. was found short. Accordingly, the appellants filed refund claim of Rs.29,701/- on 20.11.2007. The Original Authority sanctioned the refund claim. Revenue filed appeal before the Commissioner (Appeals), whereby the Adjudication Order was set aside. Hence, the appellants filed this appeal.

3. Ld. Advocate on behalf of the appellants submits that they have not challenged the classification, levy and valuation of the goods. It is his submission that the refund claim relates to short shipment, which was detected by the customs officers and the Bill of Entry can be amended under Section 149 of the Customs Act, 1962. He submits that the Commissioner (Appeals) set aside the adjudication order following the decision of the Hon'ble Supreme Court in the case of Priya Blue Industries Ltd. Vs. CC (Preventive) - 2004 (64) RLT 321 (SC)=2004 (172) ELT 145 (SC), wherein the importer filed bill of entry and claimed that the duty have been wrongly levied. It is his contention that in the present case there is no such challenge by the appellant. He submits that in the facts and circumstances of the case, the decision of the Hon'ble Punjab Haryana High Court in the case of Bansal Alloys Metals Pvt. Ltd. Vs. CC, Amritsar - 2009 (94) RLT 279 (PH)=2009 (240) ELT 483 (PH) is squarely applicable.

4. Ld. Jt. CDR reiterates the findings of the Commissioner (Appeals). He submits that there is no dispute that the appellants paid the duty as per assessed Bill of Entry. He also submits that the appellants have not challenged the Bill of Entry before the Appellate Authority. It is his submission that the Assessing authority cannot reopen the assessed Bill of Entry. In this context, he drew the attention of the Bench to the relevant portion of the decision of the Hon'ble Supreme Court in the case of Priya Blue Industries Ltd. (supra). He submits that the Hon'ble Supreme Court clearly held that the officer considering a refund claim cannot sit in appeal over an assessment made by a competent officer.

5. After hearing both the sides and on perusal of the records, I find that the appellants have not disputed the classification, levy and valuation of the assessed Bill of Entry. It is revealed from the Adjudication Order that the appellants deposited the duty as per assessed Bill of Entry on the basis of invoices. The cargo was examined by the Customs Staff and found the consignment of 95.430 M.T. Thus, it is a case of short shipment of the goods, which was detected by the customs examination staff. Section 149 of the Customs Act, 1962 provided that the proper officer may in his discretion authorise any document, after it has been presented in the customs authority, to be amended except on the basis of documentary evidence, which was re-examined at the time of clearance as the case may be. In the present case, the proper officer allowed the refund claim, after considering the documentary evidence as it was existed before clearance of the goods.

6. It is seen that the Hon'ble Punjab Haryana High Court in the case of Bansal Alloys Metals Pvt. Ltd. Vs. CC, Amritsar - 2009 (94) RLT 279 (PH)=2009 (240) ELT 483 (PH), on the identical issue, set aside the order of the Tribunal and allowed the refund claim. The relevant portion of the said decision is reproduced below:-

"18. In our humble opinion, keeping in view the provisions of Section 17 which does not involve the process of adjudication as envisaged under the Excise Act read with Rules under consideration in Flock (India)'s case (supra), the ratio of the cited