COLLECTOR OF CUSTOMS BOMBAY Vs. MAHAVIR ALUMINIUM LIMITED

JUDGEMENT

(1.) M/s. Mahavir Aluminium Ltd. [hereinafter referred to as 'the assessee'] had imported one Extrusion Press along with accessories from U. K. in three consignments under Bills of Entry filed between April 24, 1988 and May 17, 1988. The said goods were classified under Heading 98.01of the Customs Tariff. In respect of import under the Project Import (Regulations), 1986 customs duty was payable at the rate of 45% basic plus 45% auxiliary. The assessee paid the duty on that basis. Under the Notification No. 40/78-CUS (as amended) there was a concession in the matter of customs duty payable on Extrusion Press falling under Chapter 84 of the Customs Tariffs and excise duty was payable at the rate of 35% basic. The claim of the assessee for the benefit of concessional rate of duty was rejected by the Assistant Collector as well as by the Collector of Customs (Appeal). The assessee filed an appeal before the Customs, Excise and Gold (Control) Appellate Tribunal [hereinafter referred to as 'the Tribunal']. The question that arose for consideration before the Tribunal was whether the Extrusion Press imported by the assessee in accordance with the Project Import (Regulations), 1986 and assessed to customs duty under Heading 98.01 of the Customs Tariff at the rate of 45% basic plus 45% auxiliary was eligible for assessment at the rate of 35% basic in terms of the Notification No. 40/78-CUS (as amended) in which at serial No. 23 of the annexed table Extrusion Press falling under Chapter 84 has been specifically mentioned. By its judgment dated April 24, 1992, the Tribunal decided the said question in favour of the assessee on the basis of its earlier judgment in M/s. Eckoplat Pvt. Ltd. v. Collector of Customs, Bombay, decided on February 24, 1992. The Tribunal has placed reliance on the following clause in the Notification dated April 19, 1985 :-

(2.) Feeling aggrieved by the said decision of the Tribunal, the Revenue has filed Civil Appeal No. 526 (NM) of 1993."

(3.) The assessee asked for finalisation of assessment and refund of the excise duty on the basis of the judgment of the Tribunal. Since no action was taken a writ petition (Civil Writ Petition No. 686 of 1993) was filed in the Bombay High Court for a direction to the authorities to comply with the order of the Tribunal. The said writ petition was dismissed by the High Court by order dated April 24, 1993 on the ground that an appeal and stay application were pending in this Court. Civil Appeal No. 155 of 1994 has been filed by the assessee against the said order of the High Court.