2006 (12) TMI 286

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..... that they were eligible for the benefit of Notification No. 11/97-Cus. dated 1-3-1997 as amended. Densified wood fibre plates for door shutters were exempt from payment of import duty under Entry No. 117 of List No. 5 annexed to the above Notification. After a comparison of this description of the goods given under Notification with that given in the Bills of Entry, the original authority held that the goods imported by the appellants were not the same as specified under the Notification and accordingly the refund claims were rejected. In the appeals filed by the party against the decision of the Assistant Commissioner of Customs, learned Commissioner (Appeals) disagreed with the above view of the lower authority and held that the goods .....

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..... ribunal) (ii) Shriram Food Fertilizers Industries v. Commissioner of Customs, Mumbai - 2004 (175) E.L.T. 664 (Tri.-Del.) (iii) ABB Ltd. v. Commissioner of Customs, Mumbai - 2005 (181) E.L.T. 71 (Tri.-Delhi) 3. Opposing the above argument, learned SDR submitted that the basic issue which arose before the Commissioner (Appeals) was whether the benefit of the Notification was admissible to the party. Whether the party had satisfied the conditions for such benefit was a part of this issue and therefore it was within the powers of the appellate authority to address this question also. Learned Commissioner (Appeals) did not travel beyond the scope of the issue. Therefore, according to learned SDR, the case law cited by learned counse .....

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..... s of this issue. Therefore, we cannot find fault with the manner in which learned Commissioner (Appeals) dealt with the basic issue. However, we note, the original authority which held against the party on the first question did not have occasion to address the second. Where a decision of that authority on the first question was reversed by the appellate authority, the latter ought to have remanded the case to the former for dealing with the second question and disposing of the refund claims in accordance with law. 5. The decision of the lower appellate authority on the first question (whether the goods imported by the appellants were specified under the Notification) has been accepted by the department and the same has to be sustained. .....

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