ORDER

The order under challenge was passed by the customs, excise and gold (control) appellate tribunal in the following circumstances:

The appellants imported epoxy coils to use in two generators of a hydro-electric power station belonging to them. The respondents classified the epoxy coils under tariff entry 8544.11. The customs duty so determined was paid. Thereafter, the appellants made a formal application for re-assessment of the duty and for refund of a part of the duty paid on the ground that the epoxy coils ought properly to have been classified and assessed under entry 8501.64. This application remained pending until, on 27th August, 1994/25th August, 1994, the appellants addressed letters to the assistant collector of customs in regard to that application. In the letter dated 27th August, 1994, they stated:

"Vide our claim letter dt. 17.9.90 we had requested to re-classify the epoxy coils and accessories under hearing 8501.64/9801. The case has not come for hearing till to date. Further, we wish to state that after detailed review of the custom tariff and classification, it is found that the epoxy coils are parts which are used solely/principally with the generator/machine. Therefore we request you to classify epoxy coils and accessories under heading 8501 of customs tariff for the payment of custom duty at the rate of 35% (basic duty) + 45% (aux. duty) + 20% CVD & 5% SED on CVD instead of classification under heading 8501.64/9801 as already claimed."

There was no reply to that letter but, on 3rd January, 1995, the assistant collector of customs declined their application. The appellants filed an appeal before the collector (appeals). He dismissed the appeal, he found that at the appellate stage the appellants had changed their stand regarding the classification of the epoxy coils. The order of the collector (appeals) was challenged by the appellants before the tribunal. In their memo of appeal, they impugned the aforesaid finding of the collector (appeals) and added that he had failed to notice that the appellants had amended their stand on classification as early as on 27th August, 1994/25th August, 1994 and copies of those letters were annexed to the memos of appeal. Even so, the tribunal stated: "This raises a question of law as to whether, when a new classification is suggested before an appellate authority, the consequential relief flowing out of it can become time-barred, if the original issue pertained to a refund claim on other grounds?" The tribunal considered this question and concluded against the appellants.

2. It is plain from what has been stated above that the tribunal has misdirected itself. There is no question but that the appellants had sought amendment before the assistant collector of customs himself and it was in that light that the issue had to be decided. We are of the view, therefore, that the orders of the assistant collector of customs, the collector (appeals) and the tribunal must be set aside and the matter restored to the file of the assistant collector of customs to be decided afresh on the basis of the claim of the appellants contained in the letters dated 27th August, 1994/25th August, 1994.

3. Order on the appeals accordingly.

No order as to costs.

Appeal allowed.

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Parallel Citations of other Journals :

Karnataka Power Corporation Limited v. Commissioner of Customs (Appeals), Chennai & Anr., 2002(8) Supreme 649.

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