TMI Blog1997 (10) TMI 200X X X X Extracts X X X X X X X X Extracts X X X X ..... leared out of Customs charge and the importers filed a refund claim on the ground that the goods should have been classified under sub-heading No. 8426.19. They also claimed the benefit of exemption Notification No. 172/89-Cus., dated 29-5-1989. On examination of the refund claim, it was held that as the goods imported were not complete machinery but were parts, their classification under Heading No. 84.26 was ruled out. At the appeal stage, the importers claimed alternative classification under sub-heading 8431.49 of the Tariff. The Collector of Customs (Appeals), Madras, observed that as the appellants alternative plea of classification under sub-heading No. 8431.49 was not taken up at the refund stage, the same could not be entertained a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lifting and unloading machinery. Even if it is not classifiable as a main machine it can be classified UHG 84.31.49 as surivels are mentioned under Note 4 to Heading 84.31 in the Harmonised system of nomenclature in which case it is assessable under Notification 172/89-Cus. as originally claimed. As this was denied we claimed classification as a machine itself. Even if classified UH 84.31.49 the assessment is only 35+45+20% and still a refund is due. 5. It is seen that the appellants had pleaded for alternate classification under sub-heading No. 8431.49 before the learned Collector of Customs (Appeals). In his order, the Collector of Customs (Appeals) had observed as under :- The appellants alternative plea of classification under Hea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Excise duty under Tariff Item 68 and not under Item 26AA. The Tribunal will decide the issue on merits. It will be open to the respondent to urge before the Tribunal, if so advised, that the classification for purposes of customs duty should also be taken into account in deciding the classification for the purposes of excise duty. The appeal is disposed of accordingly. There will be no order as to costs. 7. We consider that the learned Collector of Customs (Appeals) should have examined the appellants plea of alternate classification which had been specifically raised in the grounds of appeal filed before him. 8. In view of the above discussion, we remand this matter to the jurisdictional Commissioner of Customs (Appeals) who shoul ..... X X X X Extracts X X X X X X X X Extracts X X X X
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