TMI Blog2017 (11) TMI 1121X X X X Extracts X X X X X X X X Extracts X X X X ..... ereby the Tribunal has dismissed the appeal preferred by the assessee. 2. This Court while admitting the matter framed the following questions of law:- i) Whether the Appellate Tribunal could travel beyond the scope of the allegations levelled in the show cause notice and decide the appeal, rejecting the refund claim of the appellant, on the basis of issues/allegations not raised in the show cause notice? ii) Whether customs duty on imported goods at the time of debonding of 100% E.O.U, is to be assessed and levied based on classification of goods depending on their usage at the time of debonding or on the basis of classification made at the time of their import. iii) Whether Jacquard machine are classifiable as part of the Weaving machine (looms) so as to be entitled to the benefit of Notification No. 17/2001 Cus. Dated 1.3.2001 available to looms or can be used independent of the Weaving machine (looms) so as to be separately classifiable and assessed as an independent auxiliary machine? 3. Counsel for the appellant Mr. Gupta has taken through the show cause notice issued by the authority wherein refund claimed by the appellant was refused. The show ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... attached to the weaving machine. Jacquard is an integral attachment of Weaving machine, which is bring provided there to produce Name Selvedge on both sides of fabric. Noticee s have Weaving machine of eighteen shafts capacity. These shafts are used to Fabric Body weave. Further the manufacturing of fabric with Name Selvedge on both side of border requires additional shafts and this operation is bring under taken by afixing Jacquard, with weaving machine. This goes on to prove that Jacquard in an attachment of weaving machine which is provided to enhance the utility of said machine. In other words additional working from Weaving machine Dobby can be acquired by afixing Jacquard because our Weaving machine Dobby has capacity of 18 shifts in all and capacity of Jacquard is 80 shafts (Hooks). By afixing Jacquard, capacity of weaving machine may be enhanced as it s so shafts (hooks) may be used in addition to shafts of weaving machine i.e. 18+18=90. Thus Jacquard is used as an accessory or weaving machine which enable the same to be used more advantageously. It is important to note here that though Jacquard render a weaving machine more advantageous, but independently Jacquard itse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 01.03.2001 cannot be extended to Jacquard machines. 6. The Appellate Authority has affirmed the same but the Tribunal while deciding the same has observed as under:- 4. After payment of duty the appellants lodged refund claim on the ground that duty was wrongly charged from them by classifying the machine under Tariff Heading 8448.11 as the machine was part of weaving machine and attracted lower rate of duty. In the fact of these facts, in our view, the Commissioner (appeals) has rightly rejected the claim of the appellants. They could lodge claim only after getting the assessment order set aside. The assessment order has attained finality as it was never challenged by the appellants. In the case of Priya Blue Industries Ltd. vs. CC (Preventive) 2004- (172) ELT 145 (SC), it has been observed by the Apex Court that refund claim contrary to assessment order, is not maintainable without order of assessment having been got modified in appeal or reviewed under Section 28 of Customs Act, 1962. Officer considering refund claim cannot sit in appeal over an assessment made by a competent officer. The Apex court has confirmed its earlier decision in Collector IVs. Flock (India) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... haracter, function and use of the goods...... 16. The Tribunal is expected to understand the factual scenario with regard to the goods whose classification has fallen for their consideration and decision, before applying the law on the issue. We find that this exercise has not been undertaken by the Tribunal. The nature and character of the products in question (namely, add-on cards and motherboards) and their functions with regard to Automatic Data Processing Machine and other machines has not been scrutinized. Therefore, we are left with no other alternative but to remand the matter to the Tribunal to decide the issue after considering the nature and the functions of add-on cards and motherboards in the functioning of Automatic Data Processing Machines. 11. Counsel for the respondent has supported the order of the Tribunal and contended that bill of entry was not challenged therefore, in view of the decision of Gujarat High Court in case of State of Gujarat 2 Ors. vs. Reliance Industries Ltd. 5 Ors. reported in (2011) SCC 503 (Guj.) wherein it has been held as under:- 70. The Supreme Court in the case of Escorts Limited v. Union of India, reported in 1998 (97 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
