TMI Blog2018 (1) TMI 836X X X X Extracts X X X X X X X X Extracts X X X X ..... al has come to independent findings based on voluminous evidence produced by the petitioners. Reference of the Commissioner in the present case that the petitioners had described the goods as Bearing Races for domestic clearances was also at issue before the Tribunal in the earlier round. In plain terms, therefore, the Commissioner was bound by the judgment of the Tribunal as confirmed by the Supreme Court. Relegating the petitioners to the appellate remedy would therefore, be futile. Further, the statute now requires a mandatory predeposit before filing any appeal. The petitioners would therefore, have to deposit a sizeable amount with the department. This appeal thus comes with an onerous condition. In facts of the case, therefore, appeal cannot be stated to be an efficacious remedy. Petition allowed. - Special Civil Application No. 2756 of 2017 With Special Civil Application No. 2758 of 2017 - - - Dated:- 10-1-2018 - MR. AKIL KURESHI AND MR. A. Y. KOGJE, JJ. For The Respondent : NOTICE NOT RECD BACK For The Respondent : PRIYANK P LODHA, ADVOCATE ORAL JUDGMENT ( PER : HONOURABLE MR.JUSTICE AKIL KURESHI) 1. These petitions arise in common bac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 69 (Tri. Ahmd.) decided the issue in favour of the petitioners. The Tribunal referred to various documents including the certificate dated 25.7.2000 issued by the Chartered Engineer in which it was clarified as under : On the basis of our inspection and verification of manufacturing facilities available at the factory of M/s. Rolex Industries, process flow chart being followed by the unit and other relevant information furnished by the unit, it is clarified that : 1. M/s. Rolex Industries, Rajkot is capable to manufacture forged and machined rings for producing bearing races from alloy steel materials. 2. Rings supplied as forged and machined condition, require further process of heat treatment to impart required hardness to bearing races, further process of finishing by grinding and lapping on special machineries, so that bearing races can be assembled as to prepare the bearing complete. 3. Forged and machined rings exported by the unit, for producing bearing races, will require further process at buyers' end to make machined rings suitable for bearing assembly. 4. Forged and machined rings manufactured and, being exported by the unit cannot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for assembly of bearings or cannot be considered as Bearing Races and fitted as Bearing Races. 6. On the basis of such materials produced by the petitioners, the Tribunal concluded as under : 14. On perusal of the certificates of the customers and the customs authorities and SEZ, as mentioned above, we are unable to accept the findings of the Adjudicating authority. The customers categorically certified that the alloy steel forging (machined) for use rings supplied by the Appellant were further processed to produce Bearing Races. The processes undertaken by the customer are heat treatment, grinding, superfinishing process like honing, lapping, assembling etc. It is submitted by the learned Advocate that these processes are essential to produce the bearing races. The customers also certified that without these processes, the Bearing rings/blanks cannot be produced. The findings of the Adjudicating authority that the produce is finished nature are without any substance. 7. Having said so, the Tribunal also referred to the classification presented by the petitioners and accepted by the department for the same product for claiming DEPB benefits. The Tribunal referred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce on the petitioners classifying the said product as Bearing Races for the purpose of domestic clearances. The petitioners opposed the proceedings and relied heavily on the judgment of the Tribunal in their own case. The Principal Commissioner by the impugned order rejected such defences. The petitioners' contention that the product sold by them require further processes at the buyers' end before it can be used as bearings was repelled in the following manner : 3.5.10 The Noticee has contended that the impugned goods supplied by the Noticee No.1 undergo certain process at buyer's end. In this regard, I find that the said impugned goods may be semi finished goods for the buyer but the said impugned goods attained the properties of Bearing Races already at the Noticee's end. Buyer has to carry out only minor work on finished rings such as grinding, to place the ball in the rings. Physical/metallurgical property in the metal as well as the characteristic for it's uses does not change at the buyer's end. It is undisputed fact that the Noticee offer the product for export as bearing rings/races by classifying the same under CTH 84829900 of the Customs Tar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... benefits was not reopened by the department. In the present case, the department has sought to reclassify the product for DEPB benefits. Judgment of the Tribunal would therefore, not apply. 14. Two questions of overlapping nature arise for our consideration. These questions are, whether the Tribunal in the earlier round of litigation has concluded the issue so far as the classification of goods for export benefits is concerned, there being no material change in the circumstances and whether in facts of the present case, writ jurisdiction should be exercised without relegating the petitioners to the appellate forum. 15. The question of relegating the petitioners to appeal before the Tribunal, in the present case, would necessarily depend on the nature of the petitioners' grievances before us. It was for this reason that we had described the two questions as of overlapping nature. A common discussion for both the issues would therefore, be necessary. 16. We have referred to the disputes in the first round of litigation between the petitioners and the department which arose in the context of the petitioners' export goods being classified for the purpose of duty drawb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ircular, the Tribunal's finding that the product was Alloy Steel Forging (Machined) and not Bearing Races, would remain unshaken. 19. The third element discussed by the Tribunal was the department's contention that the product being classified by the petitioners as Bearing Races for domestic clearances, the petitioners cannot change the stand for the purpose of export incentives. The Tribunal had dealt with this issue and opined that this issue was examined by the Customs authorities even prior to 1.10.2011 for DEPB benefits where a query was raised at the time of export of the goods. The petitioners had filed a reply. After being satisfied with the explanation, the export was permitted. 20. It can thus be seen that the entire issue was examined threadbare by the Tribunal in case of this very petitioners in the context of Duty Drawback Scheme. There being no material change in the situation, in the present case, the Commissioner could not have taken a different view. To summarise, the product remains the same, the description of various entries in the Schedule to the DEPB Scheme as compared to the Duty Drawback Schedule also remains the same. The conclusions of the Tr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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