2001 (1) TMI 179

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....ds from so much of the duty of customs or in excess of 55% ad valorem. The goods were duly assessed by the Customs authorities and the same were cleared on payment of the basic duty of customs at the rate as prescribed under this notification. Subsequently on 29-6-1993 the importers filed a refund claim with the Assistant Collector of Customs (Refund), New Custom House, Mumbai, claiming a refund of Rs. 1,31,255/- on the ground that at the relevant time the basic duty under the tariff on the imported goods were at the rate of 40% and since the duty prescribed in the exemption notification issued under Section 25 of the Customs Act can never be more than the tariff rate, they had paid excess duty and, therefore, they are entitled to the refun....

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....inst the above order of the Commissioner (Appeals). We have heard Shri Gajendra Jain, C.A., for the appellants and Shri B.K. Choubey, JDR, for the respondents. The learned consultant for the appellants has reiterated the same grounds as mentioned in their application for claim of refund dated 29-6-1993 filed before the Assistant Collector of Customs. He has also relied on the decision of the Hon'ble Supreme Court in the case of CC v. Bharat Heavy Electricals Ltd. - 1992 (61) E.L.T. 332. The learned JDR for the Revenue, on the contrary, has contended that the exemption from the auxiliary duty under Notification 192/92-Cus. was subject to the appellants availing the exemption from basic custom duty under Notification 173/92. It is contended t....

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....dgment of Bharat Heavy Etectricals Ltd. the Hon'ble Supreme Court have held that the exemption notifications in respect of basic customs duty and auxiliary duty are mutually exclusive and independent of each other. It is further stated in this judgment that relief under Notification 41/80 will not depend upon the actual operation or application or Notification 35/79 in the case of particular item or goods. It is, therefore, contended that the findings based on the arguments altogether contrary to the ratio laid in this judgment of the Hon'ble Supreme Court is not liable to be sustained and that should be set aside granting them reliefs. 5. In this case it is not disputed that the appellants at the time of import of the impugned goods opt....