Classification

We imported insoluble sulphur from Germany. There was dispute regarding classification. Our classification has not been accepted by Department. But the goods have been cleared on payment of duty under protest. We have filed appeal against the BOE. But appeal has been dismissed on the ground that we should have obtained a speaking order u/s 17(5) of the Act. After clearance we should have applied for speaking order. In the absence of such an order it is deemed that we have accepted the changed classification in spite of the protest. Is the stand of the appellate authority correct ?