2001 (9) TMI 302

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....re essentially accessories and under an exemption notification no customs duty was payable in respect thereof. 2. The record shows that a letter dated 12th September, 1992 was written by the appellant with regard to the said import. It was stated in this letter that some discussions had taken place between the representatives of the appellant and the respondent and as the goods imported were urgently required so as to meet Export Shipment Deadline. Appellant was paying duty under protest at the rate proposed by the appellant 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 i....

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.... that the application had been filed on 5th March, 1993. As it came to the conclusion that the application for refund was barred by time and therefore the refund should not have been ordered, the Commissioner (Appeals) did not give a categorical finding on the merits as to whether what was imported and in respect of which refund was allowed was spare parts or accessories. 7. Against the order of the Commissioner (Appeals), the respondent filed an appeal before the Tribunal. The Tribunal, after examining the evidence on record, came to the conclusion that 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, di....

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.... refund was denied. After dealing with this item, in respect of other items for which refund of about Rs. 2.50 crores was ordered, the Assistant Collector observed as follows :- "The functions of other items were verified and they were found to be installed in the relevant equipments. I agree that they are forming part of the relevant equipments itself which can be classified as capital goods. The chartered engineer has also confirmed that these items are accessories. I accept the same and extend the concession under the EPCG Scheme for these items." 9. We are of the 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....

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....bunal are, therefore, liable to be set aside. 10. Before parting with the case, we may advert to one more aspect arising out of the impugned order of the Tribunal. The Tribunal expressed the view that the order passed by the Collector of Customs under Section 129D(2) is beyond the scope of his powers for the reason that the Collector cannot go into fresh facts or fresh evidence and he has to confine himself to the facts already on record. According to the Tribunal, it was not open to the Collector to raise the question as to the correctness or genuineness of the seal on the 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 Tribun....