Customs, Excise and Gold Tribunal - Tamil Nadu
Commissioner Of C. Ex. vs Deccan Overseas Export Ltd. on 18 April, 2000
Equivalent citations: 2001(127)ELT761(TRI-CHENNAI)
ORDER V.K. Ashtana, Member (T)
1. When this Revenue appeal was called none appeared for Respondents despite notice just as there was no representation on 24-11-1999, 28-12-1999 and 7-2-2000 despite notices served. Therefore, we heard ld. DR Shri S. Sudarsan.
2. The appeal is against Order-in-Appeal of No. 2435/90, dated 7-12-1990 of Collector (Appeals) wherein the order-in-original dated 19-12-1989 confirming duty of Rs. 51257/- had been reduced to Rs. 47,498/-. The issue concerns assessment of certain spare parts of industrial serving machines under CTA'75 to a higher rate of duty as transmission parts under 84.83 in view of notification No. 132/87 dated 19-3-1987. The ld. Collector (Appeals) had held that since certain parts (specified in his order, which need not be repeated for brevity's sake) were not transmitting any power, therefore, they were correctly assessed as parts of industrial sewing machines in the original assessment on the Bs/E and therefore the "appeal is allowing (to be read as 'allowed') partially restricting the refund value to Rs. 47,498/-. Otherwise the appeal is rejected as inadmissible."
3. Ld. DR reiterates the Revenue's ground of appeal which is that Collector (Appeals) cannot order a refund claim as importer appellants had not lodged a refund claim under the Act, and that 12 items were used for transmission of power and hence to that extent the order impugned was not correct.
4. We have carefully considered these arguments and records of the case. Against the order-in-original, the importers appealed to the appellate authority viz. Collector (Appeals) challenging the order on classification and claming consequential relief. As noted above, the ld. Collector (Appeals) gave them partial relief on classification of certain items only. He noted that since assessable values thereof were on record before him, therefore he was in a position to quantify the consequential relief as Rs. 47,498/-
5. We are of the considered opinion that the ld. Collector was duty bound to give a finding on the merits of the classification challenged before him in an appeal and he has clearly done so. Therefore, he had two options under law. One was to direct the original authority to quantify and execute the consequential relief to the appellant. Another was to even make the task of the original authority easier by quantifying the consequential relief amount himself. Had he followed the first option, Importers would have approached the Custom House seeking implementation of the consequential relief at best by a letter. There would have been no need to claim a formal refund under Customs Act, 1962, as their's was only a request to implement an order-in-appeal and give them consequential relief. By the ld. Collector (Appeals), following the second option, the nature of action to be taken by the original authority does not change i.e. granting consequential relief, albeit quantified by the ld. Collector (Appeals). If Revenue objects to this consequential relief ordered on the ground that no refund claim was filed, then this makes a mockery of the powers of the appellate authority to grant consequential relief flowing out of a classification decision bestowed by the legislature on him.
6. The second ground of appeal is that the ld. Collector (Appeals) has wrongly held that the following parts are not transmission parts.
(1) Rotary hook only (part of vertical shaft & lower shaft mechanism) (2) Clutch Stopper (3) Clutch Claw A & B (4) Clutch Stopper Stud (5) Block for pulley (6) Block for pulley stop cam (7) Pulley inside cover (8) Stopcam assembly (9) Cap for Stop cam (10) Clutch body (11) Brake cam segment (12) Flange cam segment
There is no rejoinder form respondents on record despite repeated notices. On a perusal of this list we find that the equipments concerned with transmission of power in the industrial sewing machine as they are parts of a shaft which transmits power or parts of clutch/cam/brake which also are engaged in transmission of power, as even brakes stop the transmission of power. As per Revenue, the differential duty on these works out to Rs. 11,648/- only. In view of these being transmission parts, the Revenue appeal on classification thereof and resultant short levy to above extent is allowed.
7. In view of the aforesaid findings, the order-in-appeal impugned is modified to the above extent only. The Revenue appeal succeeds accordingly on this ground.