Per Shri T.P. Nambiar :

This is an appeal filed by the appellants against the orders passed by the Commissioner (Appeals) wherein he rejected the claim of refund of the appellants. The original authority rejected the refund claim of the appellants as unsubstantiated. Before the Assistant Collector the appellants sought classification of the goods under sub-heading 85.14.40. The Assistant Collector rejected the same as unsubstantiated. The appellants filed an appeal before the Collector (Appeals) and sought classification under 84.43.90. The learned Collector (Appeals) in para 10 of the impugned order held as follows :

"As regards the claim of the appellant for classification under 8443.90 at the appeal stage, it is submitted that these are nothing but parts of letter press printing machinery. It was originally pleaded by the appellant that what they imported was nothing but a complete electric appliance of industrial application. Thus, it is seen that what they have submitted at the appeal stage differs from what was submitted at the original refund stage.".

2. The learned Consultant Shri Arokiaswamy contended before us that when the appellants sought classification under 8443.90 the Commissioner (Appeals) should have discussed this aspect and give a finding as to why this claim made by the appellants cannot be accepted. He pointed out that without discussing this aspect of the question he straight away held that these goods are classifiable under 8479.89 without putting the appellants to notice about the same. In any case he has stated that he was required to enter a reasoned finding with respect to the claim of the appellants about the classification of the goods under 8443.90. He therefore pointed out that this is a fit case wherein the matter should be remanded.

3. Heard the learned JDR Shri Murugandy. He pointed out that the stand taken by the appellant is inconsistent. He pointed out that before the Assistant Collector the claim was under 8514.40 whereas before the Commissioner (Appeals) they changed the stand and made the claim under 8443.90. Shri Arulswamy pointed out that having discussed the matter the Commissioner (Appeals) correctly classified it under 8479.89. He therefore stated that the orders passed by the Commissioner (Appeals) are legal and proper.

4. We have considered the submissions of both the sides. It is very clear from para 10 of the impugned order that there was a claim made by the appellants with respect to the classification under 8443.90. This aspect was not discussed in the impugned order. The learned Collector has not given a speaking order in this regard as to why the claim of the appellants for classification under 8443.90 is not tenable. On the contrary, without putting the appellants to notice he entered his own findings that the same is classifiable under 8479.89. What he ought to have been done is to discuss the claim of the appellants as to whether it comes under 8443.90 and if he finds that this claim is not substantiated by giving valid reasons then he should have put the appellants to notice as to why the same is not classifiable under 8479 as held by him. Since this was not done we are of the view that the principles of natural justice are violated and in this view of the matter we set aside the impugned order and allow the appeal by way of remand to the Commissioner (Appeals) to consider the claim of the appellants for classification of the goods under 8443.90 and then to pass speaking order in this behalf and thereafter to decide the matter in accordance with law in the light of our above observations.