TaxTMI 
TaxTMI 
2017 (11) TMI 1121
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.... 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 a....
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.... under Notification No. 17/2001 Cus. Dated 1.3.2001 cannot be applicable on Jacquards machines and rather it should attract BCD @ 25% ACD @ 16% SAD @ 4% and Cess @ 0.05%. In view of the above, the Customs duty amounting to Rs. 14,85,561/- on Jacquard machine has correctly been paid by the assessee at the time of debonding of the 100% EOU. Thus the refund claim of Rs. 12,15,388/- filed by the assessee is not admissible on merits." 4. The authority has called upon the present appellant pursuant to the show cause notice to which the appellant filed reply which reads as under:- "3. At the very outset, we wish to submit that, show cause notice is wholly misconceived, patently wrong and void abinitio is as much as it seeks to deny the refund ....
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....but independently Jacquard itself is non-functional and useless. 'Jacquard' is therefore part and parcel of loom in the capacity of an accessory of the Weaving Plant. The contention in respect thereof, sought to be raised in the Show Cause Notice, are unfounded and irrational By no logical reasoning a 'Jacquard' can be termed as independent auxiliary machine, because from the foregoing submissions it is evidential beyond doubt that independently Jacquard is nonfunctional and useless, it become operative only when it is attached to a weaving machine. 4. From the forgoing it is clear that Jacquard is an integral part of weaving machine in the capacity of an Accessory which signifies aiding or contributing in a secondary or subordinate way.....
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....treated as parts of looms. Therefore, I am of the view that the benefit of concessional late of Customs duty applicable on looms under Notification No. 17/20010Cus. Dated 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 ....
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....hich has been paid now under entry 129 reads as under:- "Shuttleless looms (air jet, water jet, rapier and projectile" 10. Counsel for the appellant has strongly relied upon the decision of Supreme Court in case of Vintron Electronics Private Ltd. vs. Commissioner of Central Excise, Delhi reported in (2012) 12 SCC 362 wherein it has been held as under:- "13. We have carefully perused the impugned judgment and order. In the impugned order, the Judicial Member of the Tribunal merely proceeds to decide the issue on the ground that the Assessee had classified the goods in question under Sub-Heading No. 8473.00, and therefore, it was not open to him to claim classification under Sub-Heading No. 8471.00 so as to enjoy a lesser rate of duty. ....
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....ng 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) ELT 211 (SC), has held that when a Bill of Entry is filed by an importer giving the particulars of the goods, the assessing officer signs the Bill of Entry and signifies his approval, that itself is an order of assessment. Similarly, the Bombay High Court has, in the case of Karan Associates v. Commissioner of ....