2004 (7) TMI 489

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....dered by the Bench. We have perused the Final Order and have considered the submissions of both sides. 2. In our Final Order dated 6-8-2003, we had held that, in view of the Tribunal's Larger Bench decision in Lady Amphthil Nurses Institutions v. Commissioner of Customs [2002 (150) E.L.T. 776], the appellants were not entitled to the benefit of Notification No. 64/88-Cus., dated 1-3-1988. 3. The subject-matter of the appeal consists of two imported consignments, one consisting of "Electromyography with accessories" and the other consisting of "Probe for Ultra Sound Scanner". The two consignments were cleared under two Bills of Entry. The authorities below demanded duty on both the items by denying the benefit of exemption No....

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....ision in Lady Amphthil Nurses Institutions (supra). Before the Larger Bench the question was whether the assessee was entitled to the benefit of Notification No. 64/88-Cus. Notification No. 65/88-Cus. was not a part of the subject-matter of that case. The appellants' Consultant submits that the question whether they were entitled to the benefit of concessional rate of duty under Notification No. 65/88-Cus. has to be remanded to the original authority for a decision thereon. We have heard ld. SDR also. 4. We find that, in respect of "Probe for Ultra Sound Scanner", the appellants have not raised any plea of error for rectification. On the other hand, as regards "Electromyography", they had claimed the benefit of Notification No. 65/8....

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....the decision of the Larger Bench in Lady Amphthil Nurses Institutions v. Commissioner of Customs [2002 (150) E.L.T. 776], squarely covers it and this position is not in dispute. However, on the issue whether the benefit of Notification No. 65/88-Cus. is available to "Electromyography", we note that this issue was not examined by the Bench in the above Final Order. This issue had not arisen before the original authority and hence that authority had no occasion to deal with it. Therefore, we are of the view that the issue should be settled at the original authority's level. For this purpose, we remand the matter to the original authority with the direction that the question whether the benefit of concessional rate of duty under Notification N....