SUPER CASSETTES INDUSTRIES LTD. Vs. COMMISSIONER OF CUSTOMS

JUDGEMENT

(1.) THE appellants imported filter cartridge falling under Chapter 59 of the Customs Tariff. They filed bill of entry No. 6222, dated 21 -12 -1992 for the clearance of these cartridges at the Bombay Port. In the bill of entry filed by the appellants, they claimed the exemption under Notification 173/92 -Cus., dated 30 -4 -1992 which exempted the imported goods 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 refund of the impugned amount. The Assistant Collector of Customs, vide his order dated 28 -12 -1994, rejected the refund claim of the party. The Assistant Collector, in his order, has observed that the party was claiming refund on the ground that tariff rate for basic custom duty in the case was 40%. Therefore, the same should only be charged and auxiliary duty on the concessional rate of 5% under the Notification 124/92 + CVD should be charged. It is stated that Notification 192/92 exempted the goods which are partially or wholly exempted from the duty of customs specified in the first schedule to the Customs Tariff Act, by virtue of such notification which are specified in the schedule to the above notification. It is stated that once the party ought to pay the tariff rate of basic customs duty, the Notification 192/92 will not be applicable and since the goods were not partially or wholly exempted from the benefit of Notification 173/92, as envisaged by Notification 192/92, the party was required to pay 40% (basic custom duty + 45% auxiliary + CVD) whereas they have paid 55% basic + CVD). He has also observed that the Supreme Court judgment in the case of CC v. BHEL -1992 (61) E.L.T. 332 is also not applicable in this case, since the facts of this case are different.

(2.) THE party filed an appeal before the Commissioner (Appeals) and the Commissioner (Appeals) rejected the appeal of the party, upholding the order passed by the lower authority.

(3.) THE party is in appeal against 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 that the party first availed the exemption from the basic customs duty under Notification 173/92 and since this was a condition precedent for availing the exemption from auxiliary duty under Notification 192/92. Had the party not claimed the exemption from basic custom duty as specified under Notification 173/92, they would not have been extended the benefit of exemption for auxiliary duty under Notification 192/92 -Cus., dated 14 -5 -1992. It is, therefore, contended on behalf of the Revenue that having once submitted to the propositions of these two notifications, it is not open to the appellants to revert back and claim the refund of the customs duty for extending the contentions as made by them in their refund applications.