Per P. Karthikeyan : This is an appeal filed by M/s. Brakes India Ltd., Padi, Chennai against the Order in Appeal No. C.Cus. 376/06 dated 25.05.06, passed by the Commissioner of Customs (Appeal), Chennai. The facts of the case are that the appellants are engaged in the manufacture of brake assemblies using also raw materials imported under DEPB scheme. The assessee used to avail exemption under Notification No. 45/2002-Cus. dated 22.04.2002 debiting the DEPB credit equal to the duty payable. The assessee used to discharge the duty liability as regards the basic customs duty using DEPB credit and pay the additional duty of customs in cash. They used to take credit of CVD paid in their cenvat account. The exim policy provisions had prohibited taking of cenvat credit of CVD paid using DEPB credit. In the mean time, in the year 2003, the Tribunal decided in the case of Polyhose India Pvt. Ltd. Vs. CCE reported in 2003 (54) RLT 572 (CEGAT-Che.)=2003 (152) ELT 361 and vide Final Order No. 1050/2003 dated 05.12.2003 of SZB, Chennai in the case of Spic Ltd. Vs. CCE [reported in 2004 (61) RLT 671 (CESTAT-Che.)], that importers paying CVD using DEPB credit could also take cenvat credit of the same. Following the above decisions, the appellants had paid CVD by debit in DEPB book and taken credit for several imports made from July 2003. As the inputs had not suffered CVD, the jurisdictional Central Excise officers initiated proceedings to recover such credit of CVD taken by the assessee. The credit involved in all such imports by the assessee was over Rs. 86.23 lakhs. The assessee approached the CBEC seeking clarification as to their eligibility to cenvat credit in respect of the impugned payments of CVD in view of the Tribunal orders and its recredit in DEPB book if they paid the CVD already taken, in cash. The Board informed them that the department had not accepted the said orders of the Tribunal and that they may approach the jurisdictional Commissioner of Customs as regards the re-credit of the CVD paid in the DEPB book. When they pursued the matter with the Custom House, the Additional Commissioner of Customs informed them that the Custom House had not allowed any recredit in the recent past and rejected their request for recredit of the CVD (if paid in cash) in the DEPB book. The impugned order has been passed on appeal by the assessee against the above communication of the Additional Commissioner of Customs dated 17.06.04.

2. The assessee's request in the appeal was for re-assessment of the imported goods whereby they would pay the CVD in cash so that the DEPB book could be recredited with equal amount. Before the lower appellate authority, the assessee had cited various case law in support of their plea that when alternative assessments were possible, the assessee could opt for any of them even after having chosen the benefit of a different assessment initially. The Commissioner observed that those decisions related to cases on the Central Excise side and availment of concession by an assessee who had initially availed the credit contrary to the condition of the relevant notification and was allowed the benefit of that notification on expunging the credit. Judgments cited were to the effect that when the benefit of two notifications were available, the assessee could choose the one more beneficial to it.

3. In the impugned order, the Commissioner found that in the case before him, the assessee had sought relief of a different assessment after the goods had been assessed and cleared. The Commissioner observed that once an order of assessment had been passed, duty was payable based on that order unless it was revised under Section 28 of the Customs Act'62 (the Act) or modified in an order in appeal. A finally assessed bill of entry could not be reassessed in terms of Section 17 (4) of the Act unless there was a good reason for the same or there was a valid order for the same from an appellate authority, as per the judgment of th