Jyoti Balasundaram, Member (J)

1. The appellant has filed this appeal against the order of the Collector of Customs (Appeals) in Order No. C 3/3055/80 dated 17-3-1983 confirming the order of the Assistant Collector of Customs (Refunds) in order No. S. 25/134/80 dated 27/29-8-80. The issue involved in this case relates to the assessment of Customs duty by the Assistant Collector of Customs, Madras on 22 shipments of goods which are plant and machinery imported from Belgium for the manufacture of Cast Iron Spun Pipes. The Appellant has filed a claim for refund of Rs. 15,90,023/- after deducting a sum of Rs. 50,764/- refunded by the Department at the time of final assessment of the duty.

2. The facts of the case in brief are as follows :-

The Company imported a complete plant for the manufacture of Cast Iron Spun Pipes and the import was completed in 22 parts. Shipments were spread over a period of about three years from 1965. As this was imported under contract procedure, the Assistant Collector of Customs made preliminary assessment directing payments of duty as demanded subject to reconciliation at the tune of final assessment.

3. The Assistant Collector of Customs, Madras directed the appellant to file a certificate of final payment with reconciliation statement in a specified form showing the name of vessel, bill of entry and date and FOB value, insurance, landing charges, total assessable value, rate of duty, duty payable, duty-paid, refund and recovery. In response to this direction the appellant filed the reconciliation statement showing the duty payable, the duty paid and the excess refundable to them under relevant Customs Tariff Schedule of the year 1965-66. Another statement was also filed in response to letter dated 9-3-1968 from the Assistant Collector of Customs, Madras. The extracts of the statements have been filed as part of record. On 21-7-1982 the Asst. Collector of Customs had issued a cheque for Rs. 50,764.76 as refund due to them. The appellant was not aware of the details of the refund as against the original claim of Rs. 16,40,787/-. The Assistant Collector of Customs was requested to give a speaking order. But this was not acted upon by the Department. The Department took a stand in their letter S. 35/6/65 Gr-.II dated 30-3-1973 stating that when provisional assessment was finalised there is no need for issue of an order in original giving a speaking order. Aggrieved by the said rejection the Appellant preferred an appeal before the Appellate Collector of Customs, Madras under Section 128 of the Customs Act. But the Appellate authority rejected the appeal in litnine as not maintainable without a speaking order from the Assistant Collector of Customs, Madras and directed the appellant to obtain an appealable order from the lower authority. The appellant had to seek its remedy through a court of law and filed a writ petition in the High Court, WP No. 1885 of 1977 and WMP 5239 of 1979 seeking direction for issue of a speaking order by the appropriate authority. On 31-8-1979, the High Court directed de novo enquiry and considered the petitioner's application dated 12-3-1969 for refund of excess duty and condoned the plea of bar of limitation on this aspect and directed the Collector of Customs to consider the case on merits after giving due opportunity to the appellant.

4. The Assistant Collector of Customs, thereupon gave a personal hearing to the appellant through their Counsel to consider the matter de novo. In Order in Original No. S25/134/80 dated 27-8-1980, the Assistant Collector of Customs (Refund) had passed an order rejecting the claim of the appellant for refund of excess duty. In the order, he has stated that "the contention of the appellant that the machinery imported by them is only a 'Metal Working Machinery' is not acceptable. The term 'Metal Working Machinery' appearing in Item 72(17) ICT would refer to those types of machinery which works on metal as such. Machines connected with the produc