TMI Blog2013 (9) TMI 578X X X X Extracts X X X X X X X X Extracts X X X X ..... & E/CO/98 of 2011 - Order No.A/1268-1269/WZB/AHD/2012 - Dated:- 25-7-2012 - Mr. M.V. Ravindran and Mr. B.S.V. Murthy, JJ. For the Appellant: Shri S.K. Mall, AR For the Respondent: Shri V. Rama Rao, Advocate JUDGEMENT Per: Mr. B.S.V. Murthy; 1. The brief facts of the case are as under:- (i) M/s. Hyundai Heavy Industries Company Limited (Hyundai for short) was awarded a joint contract with Mazagaon Dock Limited by ONGC for creation of HV well Platform at Mumbai High Offshore. Hyundai was made exclusive sub-contractor for fabrication and installation of Top side (facilities), Helideck etc. of the platform, where Mazagaon Dock Limited was to fabricate jacket (foundation/ lower portion). (ii) Hyundai in turn further subcontracted the work of manufacture of top side facilities to M/s. L T Limited under a sub-contract agreement dated 15.10.2001. M/s. L T Limited manufactured the goods under Section 65 of Customs Act, 1962 out of imported raw materials and parts, which were imported by Hyundai by availing the exemption under Notification No. 21/2002-Cus dated 01.3.2002. (iii) M/s. L T manufactured the goods in bond under Section 65 of Customs Act and cleared t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e refund claims, Hyundai, preferred appeal before the Commissioner (Appeals). Commissioner (Appeals) considering the submissions made on behalf of the Hyundai and after perusing the material and evidence on record passed order, rejecting the appeals on the ground that M/s. Hyundai is not eligible to claim the refund. (viii) Being aggrieved and dissatisfied with the order of Commissioner (Appeals), Hyundai further preferred appeal before the appellate Tribunal, Ahmedabad. Tribunal after considering the submissions from both sides came to the conclusion that the Commissioner (Appeals) has not discussed the claim on merit and dismissed the appeal on the ground of locus-standi without giving opportunity to the Hyundai to put forth their case. In the light of that observation the order of Commissioner (Appeals) was set aside and the case was remanded back to Commissioner (Appeals) for deciding the matter afresh. Hyundai was permitted to raise all issues before Commissioner (Appeals). (ix) In pursuance of the said order of the Tribunal, the Commissioner (Appeals) started the remand proceedings by granting the personal hearing to Hyundai on 07.5.2008 and 09.6.2008, wherein the respond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te. Following points were raised by the respondent before the Commissioner (Appeals); I. that the goods attract customs duty under Customs Act and not the Central Excise duty under Central Excise Act. II. that the exemption under Notification No. 21/2002-Cus) Srl No. 215) is applicable in the case. III. that the goods in their case are classifiable under CETH 89.05. IV. that the goods are not marketable and not excisable. The Commissioner (Appeals) after considering the submissions made and after perusing the material and evidence on record passed order No RKA/150/SRT-1/2011 dated 24.3.2011, holding that; I. the goods attract customs duty under Customs Act and not the Central Excise duty under Central Excise Act. II. the exemption under Notification No. 21/2002-Cus (Sl. No. 215) is not applicable in the case. III. the goods are classifiable under CETH 89.05. IV. Contention of non-marketability and non excisability, is not correct. In view of above finding, the Commissioner (Appeals) held that M/s. Hyundai is entitled for refund. 2. Revenue is in appeal. 3. Heard both sides in detail. After spending considerable time in hearing both the parties, it was found ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would have rested then and there would have been no demand. Only when the matter has come up for the third time and that too when the impugned order was passed and Revenue is in appeal, the fact that there was an adjudication order passed by Commissioner upholding the classification of the goods and liability to Central Excise duty came to the notice of this Tribunal. Sadly, it has to be noted, that even before the Commissioner (Appeals), the respondents never brought it on record that there was an order passed by Commissioner. The result is that we have the impugned order wherein the Commissioner (Appeals) has taken a view that goods attract Customs duty and not Central Excise duty and has also decided the classification as claimed by the respondents both of which are contrary to the decision of the executive Commissioner in his order dated 24.9.2003 which has attained finality in the absence of any challenge before the appellate fora. The net result is that Commissioner s (Appeals) decision becomes un-implementable since the adjudicating authority, the Commissioner who passed the order had passed the order within his jurisdiction and that order remains unchallenged. In fact, the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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