Customs, Excise and Gold Tribunal - Bangalore
Duke Arnics Electronics Pvt. Ltd. vs Commr. Of C. Ex. on 29 November, 2002
Equivalent citations: 2003(161)ELT311(TRI-BANG)
ORDER G.A. Brahma Deva, Member (J)
1. Whether assessee is eligible for exemption in terms of Notification No. 121/92, dated 1-3-92 is an issue to be considered herein.
2. Shri Sankaram, appearing for the applicants submitted that the impugned item in this case is measuring checking and analyzing instrument as per Sl. No. 45 of the above Notification. Notification clearly mentions that electrical measuring, checking, analyzing or automatic trolling instruments and apparatus are exempted from auxiliary duty. Accordingly, the assessee lodged a refund claim for payment of auxiliary duty in respect of the above item as per the terms of the Notification No. 121/92. The refund claim had been rejected without valid reason.
3. He also drew our attention to the proviso to the Notification wherein it clearly specifies that "nothing contained in this notification shall be applicable to goods in respect of which an importer avails of the exemption from the duty of customs leviable thereon which is specified in the First Schedule to the Customs Tariff Act, 1975 (51 of 1975) contained in the notifications of the Government of India in the Ministry of Finance (Department of Revenue) Nos. 26/92-Customs, 34/92-Customs, 108/92-Customs, 109/92-Customs, all dated the 1st March 1992." It was also submitted by the Counsel that the party has not obtained any benefit in terms of the following Notification viz. No. 26/92, 34/92 or 108/92 and 109/92. This position has been fairly conceded by the D.R.
4. In view of this position, we do not find any justification to deny the benefit of exemption in terms of Notification No. 121/92. Accordingly, party is entitled to refund claim. In view of the submissions made by the DR, whether refund claim is subject to unjust enrichment or not has also to be considered by the adjudicating authority in accordance with law. Thus, this appeal is disposed off in the above terms.