Mahavir Spg. Mills vs Collector Of Customs>1993(04)LCX0018

1993(04)LCX0018

BEFORE THE CEGAT, SPECIAL BENCH ‘B2’, NEW DELHI

S/Shri P.C. Jain, Member (T) and S.L. Peeran, Member (J)

MAHAVIR SPG. MILLS

Versus

COLLECTOR OF CUSTOMS

Order No. C/53/93, dated 23-4-1993 in C/A No. 478/92-B2

Advocated By : Shri R.S. Saini, Advocate, for the Appellants.

Shri B.K. Singh, SDR, for the Respondent.

[Order per : P.C. Jain, Member (T)]. - Brief facts are as follows. The appellant herein imported two machines described as “Uster Tested Model B/M Digital Testing and analysing installation”. Assessment of the said machines was made under Tariff Heading 9024.80. Its assessment was however made by the deptt. under Tariff Heading 90.31 on the ground that the imported machines are for the purpose of checking quality of yarn. No mechanical properties are measured and checked. Therefore, Tariff Heading 90.24 is not applicable. On appeal before the lower appellate authority the appellants, apart from maintaining the aforesaid ground took the additional ground that even if the goods are assessed under Tariff Heading 90.31 they would still be entitled to the lower rate of duty at 40% basic customs duty in terms of Notification 118/86-Cus. dated 17-2-1986 which is an unconditional notification. The lower appellate authority in the impugned order on the aforesaid ground has observed as follows :

“Examining the above position, I find that the appellants at no stage, either at the time of filing of Bill of Entry, or assessment, or at the time of their refund application before Asstt. Collector or at the time of obtaining speaking order of assessment from Asst. Collector, Customs, have asked for the benefit of Notification No. 118/86. It is for the first time in the appeal that they are asking for the benefit of this notification. I find that this is inadmissible in view of the fact that even if the appellants failed to ask the benefit of this notification earlier, the proper and established procedure is that they have to approach the Asstt. Collector Refunds making their case for refund of excess duty paid in view of any exemption notification, as in this case under Notification No. 118/86 to which they think they were entitled to. But such an application for refund has to be made within the specified period of six months under Section 27 of the Customs Act, 1962. I observe that since the appellants for the first time in this appeal are asking for refund of duty on the ground that concessional rate of duty is available to them under Notification No. 118/86, the time bar under Section 27 is applicable considering the fact that duty in this case was paid on 27-2-1991 but the ground for refund for the first time has been raised by the appellants in their appeal filed before me on 10-2-1992".

2. Ld. Advocate Shri R.S. Saini for the applicants submits that denial of the benefit of Notification No. 118/86 by the lower appellate authority is not legally tenable. Since the assessment order itself has been passed by the Asstt. Collector, there was no question of filing a refund application to Asstt. Collector Refunds as suggested by the appellate authority in the aforesaid observation in view of the provisions of Section 27 of the Customs

Act. The only method and remedy available to the appellants to seek the benefit of the said notification was through the appellate procedure.

3. Drawing attention to the Notification No. 118/86, he submits that Sl. No. 3 of the table to the notification reads as follows :

“Instruments used by them for purposes of measuring and checking falling under Heading 17 or 90.31".

He submits that it is admitted to the deptt. that the imported goods are assessable under Tariff Heading 90.31. Accordingly, the Notification No. 118/86 dated 17-2-1986 is clearly applicable to the appellants on the basis of available evidence and facts on records. In the aforesaid submission, he prays for allowing the appeal with consequential relief to the appellants.

4. Ld. SDK Shri B.K. Singh on the other hand reiterates the findings of the lower appellate authority.

5. We have carefully considered the pleas advanced from both sides. Section 27(1) of the Customs Act lays down the procedure for filing a claim for refund of duty in case an order of assessment has been made by an officer of Customs, lower in rank than an Asstt. Collector of Customs. Admittedly, the assessment order has been made here by an Asstt. Collector of Customs. The procedure for filing a refund claim therefore under Section 27 was not available to the appellants. Therefore, the observation of the lower appellate authority in denying the benefit of additional ground taken by them before the said authority is ......... on correct facts. The appellants have followed the right procedure in making an appeal before the lower appellate authority and claiming the benefit of the notification.

6. On going through the notification, we find that it is clearly applicable to the appellants as rightly submitted by the ld. advocate in as much as the goods have been held to be classifiable under Tariff Heading 90.31. We therefore set aside the impugned order and allow the appeal with consequential relief to the appellants.

Equivalent 1993 (68) ELT 668 (Tribunal)