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TMI Blog1987 (5) TMI 129X X X X Extracts X X X X X X X X Extracts X X X X ..... f Notification No. 40-Cus/78, dated 1-3-1978 as amended from time to time. The learned Assistant Collector had rejected the refund claim of the appellant on the ground that Serial No. 14 of the table covers plastic extruder above 150mm screw diameter . The notification covers only complete plastic extruder and does not cover parts and/or accessories, parts/accessories if not charged separately and imported along with the main equipment worth chargeable at the same rate of duty as the main equipment. He had further observed that the goods were imported separately and not with the plastic extruder and when the goods were imported separately, the same were not eligible for concessional assessment under Notification No. 40-Cus/78. He had rejected the claim. Being aggrieved from the aforesaid order the appellant had filed an appeal before the learned Appellate Collector of Customs. The Appellate Collector of Customs had held that the benefit of the notification could not be extended to other accessories which were actually independent machines having their own functions and had rejected the appeal. Being aggrieved from the aforesaid order the appellant has come in appeal before the Tri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r would be of no use and cannot be used for production. Therefore, the intention of Chief Controller of Imports and Exports appears to be quite clear that by putting extruder of above 150mm screw dia. What they had in mind was a complete extrusion line and this was fully borne out by the fact that in the subsequent policy this extruder was placed in part A (1) and note quoted above made applicable to it. The Board had given benefit of doubt and had allowed the appeal. Shri Kochhar states that the appellant s case is fully supported by another judgment of the Tribunal in the case of Accumax Ltd., reported in 1983 E.L.T. 2029 where the Tribunal had held that The appellants have adduced enough technical evidence to show that the essential function of the Rolling Gear Tester is that of an eccentricity tester. Due regard has also to be given to the DGTD clarification and the manufacturers certificate, specially since the department has not refuted the contentions by reference to any authorities or documents. In the result we allow the appeal and set aside the impugned order". Shri Kochhar states that the earlier order of the Board though not binding on the Tribunal, has got persuas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch is Annexure A to the order placed by the appellant and contains details. Shri Gopinath states that extruder is part of the system of machines. He has referred to the extract from Mc Graw Hill Science and Technology Vol. 10, page 530 which appears on page 1 of the respondent s paper book. Shri Gopinath has referred to items 3 and 5 of the invoice. He has pleaded that the goods imported by the appellant are independent machines. He has also referred to Accessories Condition Rules 1963. He has referred to Order Nos. 25 and 26 of 1985/B2, dated 7-1-86 in the case of Lokmat Newspapers Ltd. and M/s Dara Printocrats Ltd. v. Collector of Customs, Bombay where the Tribunal had held that the notification covers only photo composing machine, key board was not their accessories. The Tribunal had held that what had been imported were independent units performing independent functions and had rejected the appeal. Shri Gopinath states that in the present matter before the Tribunal the machines imported by the appellant are independent and can be independently used and as such the appellants cannot have the benefit of Notification No. 40-Cus/78, dated 1-3-78. He has also referred to a judgmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re not applicable. He has referred to Note 3 to Section XVI of the Customs Tariff Act which clearly lays down that unless the headings otherwise required, composite machines consisting of two or more machines fitted together to form a whole or other machines adopted for the purpose of performing two or more complementary or alternative functions are to be classified as if consisting only of that component or as being that machine which performs the principal function. Shri Kochhar states that the extruder cannot work without the parts and accessories imported by the appellant and as such the appellant is entitled to the benefit of the notification. The other machines do not have independent functions. He has again referred to the earlier order of the Tribunal in favour of the appellant and pleads that there is no reason why the appellant should be denied the benefit of the earlier order. Shri Kochhar states that earlier he had referred to note 3 of Section XVI and appellant s case is fully covered by that. He has pleaded for the acceptance of the appeal. 6. We have heard both the sides and have gone through the facts and circumstances of the case. The appellants had imported line ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whole and other machines adapted for the purpose of performing two or more complementary or alternative functions are to be classified as if consisting only of that component or as being that machine which performs the principal function. We would have no hesitation in following the provisions of Note 3, had there been any evidence on record to the effect that imported item is a composite machine consisting of two or more machines adapted for the purpose of performing two or more complementary or alternative functions are to be classified as if consisting only of that component or as being that machine which performs the principal function. The only evidence on record is the copy of the order for complete 200mm screw diameter plastic extruder containing the specification and description. The invoice is also a consolidated one. In paragraph No. 6 of Order No. 440/B/84, there is an observation that the invoice is at the dictates of the importer. Since the appellant has not taken any care in placing on record the catalogue, technical write-up, we hold that the lower authorities had correctly rejected the appellant s claim for the benefit of Notification No. 40/78-Cus, dated 1-3-19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eration was given to the question whether a garnishee order could properly be made on an account standing in the name of the liquidator. When, therefore, this very point was argued in a subsequent case before the Court of Appeal (1), the court held itself not bound by its previous decision. Sir Wilfrid Greene, M.R. said that he could not help thinking that the point now raised had been deliberately passed sub silentio by Councel in order that the point of substance might be decided. He went on to say that the point had to be decided by the earlier court before it could make the order which it did; nevertheless, since it was decided without argument, without reference to the crucial words of the Rule, and without any citation of authority , it was not binding and would not be followed. The Rule that a precedent sub silentio is not authoritative goes back at least to 1661 (m), when Councel said : An hundred precedents sub silentio and without argument are of no mement. This Rule has ever since been followed (n). (k) (1936) 2 All E.R. 905 (C.A.) (l) Lancaster Motor Co. v. Bremith Ltd. (1941) 1 K.B. 675 at 677 (C.A.) (m) R. v. Warner (Ward) 1 Keb. 66, 1 Lev. 8. (n) O Shea ..... X X X X Extracts X X X X X X X X Extracts X X X X
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