TMI Blog2001 (9) TMI 302X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... herein. The request was made to release the consignment for assessment, payment of duty and early clearance. 3. After the goods were cleared, an application for refund of the duty paid was filed. There is a dispute between the parties as to when was the application filed. According to the respondent, the application was filed on 5th March, 1993, whereas according to the appellant the application was received in the refund section only on 7th April, 1993. The application bore more than one stamp and there was a dispute with regard to the date of receipt of the said application. 4. The Assistant Collector allowed the refund of about Rs. 2.50 crores after examining the goods in question and holding that they were accessories. With regard t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the application for refund had been filed on 5th March, 1993 and the same was within the period of limitation. The Tribunal, however, while allowing the appeal of the respondent, did not go into the other aspect as to whether the refund was properly allowed on merits, namely, whether what was imported were accessories or spare parts. It can be noticed that the exemption notification only permitted, accessories from being exempt from tax and not spares. In our opinion, the finding of fact arrived at by the Tribunal that the application for refund of duty was within the period of limitation calls for no interference. We are, however, informed that there is a criminal prosecution which has been launched alleging that the letter dated 5th March ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he opinion that the aforesaid cryptic order of the Assistant Collector would not be regarded legal. 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 exami ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refund application as it involves a detailed enquiry. Such a power, according to the Tribunal, could only be exercised under Section 28. Assuming that the Tribunal s understanding of the scope and ambit of Section 129D(2) is correct, it is not possible in the instant case to hold that the Collector of Customs travelled beyond the record and culled out fresh facts or fresh evidence in support of his conclusion. The Collector, in our view, restricted himself to the examination of the facts apparent from the record and drew the inferences and conclusions of his own on an appreciation of the material on record and in the light of the extent procedures. He did not launch upon an investigation of the facts which can be said to be extraneous to t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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