Haryana Milk Foods Vs. Collector of Customs - Court Judgment

Excerpt:
1. this appeal is directed against order-in-appeal dated 2-1-1991. the appellants imported a consignment of one complete aseptic processing and packaging system called as "elecster" consisting of elecster 1000 sterilizer, homogenizer, balancing equipment etc. the impugned goods were assessed to duty under cth 84.20 read with notification nos.47/84-cus. and 125/86-cus. the appellants subsequently filed a refund claim claiming classification under heading 84.19 read with notification no. 189/86, dated 1-3-1986. this claim was rejected and collector (appeals) in appeal held that goods were classifiable neither under 84.20 nor 84.19 but under 84.79 as machines having individual function not specified elsewhere.2. arguing for the appellants, ld. advocate submits that they were not put on notice in regard to the classification.3. ld. dr reiterates the department arguments but fairly concedes that matter would have go back by remand in order to enable the appellant to explain their case.4. we have heard both sides. we find that collector (appeals) in appeal has taken a ground entirely different from what was in dispute during the proceedings. collector (appeals) could not have adopted a ground which was never contested before him by revenue and in regard to which the appellants were not put on notice. this order therefore suffers from a basic infirmity and cannot be sustained as it is. without going into merit of the case, therefore, we set aside the impugned order and remand the matter to asstt. commissioner of customs for de novo decision after giving appellants an opportunity of being heard. we also note that asstt. commissioner had passed a completely non-speaking order inasmuch as he accepts the claim of the appellants that the goods were classifiable under heading 84.19 and admits also that refund will become "suo motto". and yet he holds it is not admissible. in any case, since we are remanding the matter to asstt. commissioner, we do not wish to dwell any further on this aspect.

Judgment:
1. This appeal is directed against order-in-appeal dated 2-1-1991. The appellants imported a consignment of one complete Aseptic Processing and Packaging System called as "ELECSTER" consisting of Elecster 1000 Sterilizer, Homogenizer, Balancing equipment etc. The impugned goods were assessed to duty under CTH 84.20 read with Notification Nos.

47/84-Cus. and 125/86-Cus. The appellants subsequently filed a refund claim claiming classification under Heading 84.19 read with Notification No. 189/86, dated 1-3-1986. This claim was rejected and Collector (Appeals) in appeal held that goods were classifiable neither under 84.20 nor 84.19 but under 84.79 as machines having individual function not specified elsewhere.

2. Arguing for the appellants, ld. Advocate submits that they were not put on notice in regard to the classification.

3. Ld. DR reiterates the department arguments but fairly concedes that matter would have go back by remand in order to enable the appellant to explain their case.

4. We have heard both sides. We find that Collector (Appeals) in appeal has taken a ground entirely different from what was in dispute during the proceedings. Collector (Appeals) could not have adopted a ground which was never contested before him by revenue and in regard to which the appellants were not put on notice. This order therefore suffers from a basic infirmity and cannot be sustained as it is. Without going into merit of the case, therefore, we set aside the impugned order and remand the matter to Asstt. Commissioner of Customs for de novo decision after giving appellants an opportunity of being heard. We also note that Asstt. Commissioner had passed a completely non-speaking order inasmuch as he accepts the claim of the appellants that the goods were classifiable under Heading 84.19 and admits also that refund will become "suo motto". And yet he holds it is not admissible. In any case, since we are remanding the matter to Asstt. Commissioner, we do not wish to dwell any further on this aspect.