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2001 (9) TMI 302 - SC - CustomsWhether the refund was properly allowed on merits, namely, whether what was imported were accessories or spare parts? Held that:- Just as the Assistant Collector had considered each item and came to the conclusion that they were spares, it was incumbent upon him to give details of the other items before coming to the conclusion that they were accessories and not spares. It is to be borne in mind that the duty was paid by the respondent on the basis of the claim of the appellant, namely, that what was imported were spares and not accessories. The refund could be ordered only if there was a positive finding based on tangible material to the effect that what was imported were accessories and not spares. It was necessary, therefore, for the Assistant Collector to have examined and given details thereof in the order which was passed. This not having been done, apart from anything else, the Commissioner was justified in passing an order under Section 129D and directing the filing of an appeal. The Commissioner (Appeals) did not deal with the question as to whether what was imported and in respect of which the refund was allowed were spares or accessories. This question was also not gone into by the Tribunal. The Commissioner (Appeals) did not decide it because it was of the opinion that the application for refund itself was barred by time, inasmuch as the application for refund is not to be regarded as having been filed within time. It is incumbent upon the Commissioner to give a finding with regard to the goods imported as to whether they were spares as claimed by the Department or accessories as claimed by the respondent. The orders of the Commissioner (Appeals) and the Tribunal are, therefore, liable to be set aside. Appeal allowed.
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