Singh Vs. State of Punjab  INSC 95 (8 February 1994)
K. Jayachandra (J) Reddy, K. Jayachandra (J) Ray, G.N. (J)
1994 AIR 969 1994 SCC Supl. (2) 26 JT 1994 (1) 427 1994 SCALE (1)419
Judgment of the Court was delivered by HANSARIA, J.- The appellant is a
manufacturer, inter alia, of parts of internal combustion piston engines. A
question was raised at one point of time whether the appellant was entitled to
the benefit of notification No. 281-Cus/76 granting some exemption from payment
of customs duty in respect of rod bushes and camshaft bushes. On exemption not
having been given on the product of the appellant, the matter came to be
examined ultimately by this Court in Civil Appeal No. 335 of 1987 and by the
judgment rendered on September
18, 1987, it was held
that the appellant was entitled to the exemption.
aforesaid notification held the field till February 28, 1986, where after notification No.
153-Cus/86 came to be issued on the selfsame subject. The notification which is
dated March 1, 1986 came to be amended by notification
No.203-Cus, dated March
13, 1986. The benefit
of the exemption under these notifications was initially denied to the
appellants but came to be granted ultimately.
Customs Tariff Act was amended subsequently and a new notification, this time
bearing No. 69-Cus/87, came to be issued on March 1, 1987. The appellant claimed exemption
under this notification also which has not been granted yet.
this not being done, an approach was made to the Custom, Excise and Gold
(Control) Appellate Tribunal (CEGAT) which too did not grant this prayer of the
appellant. Feeling aggrieved, this appeal has been filed under the provisions
of Section 130-E(b) of the Customs Act, 1962.
perusal of the order of the Tribunal shows that it required the appellant to
follow the hierarchy inasmuch as even the Collector had not taken a final
decision in the matter and no assessment order refusing the exemption had been
passed. It is because of this that the Tribunal held that it cannot pass any
order relating to the claim of exemption inasmuch as the party which may get
affected had not been given opportunity to put forth its ground.
Dholakia, learned counsel for the appellant, contends that though there is no
assessment order as such after refusing the exemption prayed for, the order of
the Collector noted by the Tribunal would show that he had virtually refused
the exemption; and so, it is a fit case where in this proceeding itself this
Court should decide the question raised by the appellant, instead of leaving it
to agitate the matter before the Collector which, according to learned counsel,
would serve no purpose in view of the stand taken by the Collector.
it be seen as to what is the stand of the Collector. This appears from the
following observations made by him as noted at paragraph 11 of the Tribunal's order
reference to the claims made by M/s Jain Engineering Co. Delhi, for extending the benefit in terms
of notification No. 69/87, dated March 1, 1987, 1 observe that this benefit flows to parts falling under
heading 98.06. The statute i.e. the Customs Tariff Act, was amended w.e.f.
March 1, 1987 and that in the statute both 84.09 and 98.06 are coexisting and
in the matter gone into by the Hon'ble Supreme Court there was no occasion to
consider the changes effected in the statute, even though their order was dated
September 1987. 1 do not accept the contention of the importer for benefit
under Notification 69/87-CLIS in respect of parts which are not classifiable
under heading No. 98.06 of CTA.
importer has 31 any grievance with reference to classification of any parts or
application or otherwise of notification No. 69/87-Cus or any other
notification, he is advised to agitate the matter before the competent
assessing officer for his consideration. I hold that the request for extension
of the benefit under notification No. 69/87-Cus, dated March 1, 1987 does not
flow directly from the decision and directions contained in the original order
dated September 18, 1987 of the Hon'ble Supreme Court which is the main
judgment which has to be applied in deciding all the pending cases."
aforesaid shows that the view of the Collector was that the claim for exemption
under notification No. 67/87 did not flow directly from the decision of this
Court. Shri Dholakia contends that the Collector was only technically right in
taking this view because a close reading of this Court's aforesaid judgment
would go to show that exemption under notification No. 69-Cus/87 could not have
been denied merely because under the Customs Tariff Act as amended headings
84.09 and 98.06 coexist inasmuch as Chapter 98 of the Act, if read in its
entirety along with Notes 1 and 7 and heading 98.06 would show that the fact
that in the present classification the machinery parts are covered by 98.06
would not make any difference and the goods in question shall have to be taken
to fall under 84.07 and 84.08, which headings under notification No. 281-CS/76
(which was the subject-matter of this Court's examination in the aforesaid
case) was 84.06. Shri Dholakia strenuously urges that the observation made by
this Court in its earlier judgment that parts covered by heading 84.06 'will
get benefit of exemption' leaves no manner of doubt that benefit under
notification No. 69-Cus/87 has also to be given.
have not felt inclined to express our view on the contention advanced by Shri Dholakia
because there is no order of even the first assessing authority denying the
exemption, dehors what was held by this Court in its aforesaid judgment. It is
apparent that by the force of the aforesaid judgment alone, benefit of the
exemption under notification No. 69-Cus/87 cannot be claimed, though it may be
that the view taken by this Court in the earlier appeal lends support to the
contention of the assessee, if what has been provided in amended Chapter 98 is
read as Shri Dholakia would like.
learned counsel presses for our decision on the point involved by referring to
order dated August 1, 1989 (passed in the aforesaid appeal of this Court) by
which the Collector was required to dispose of the claim of the appellant for
exemption under the subsequent notification.
not having been done, it is urged that the appellants' prayer in question may
be considered by us in this proceeding itself, instead of requiring it to knock
the door of the Collector again. It may be that the Collector should have
finally disposed of this order. But he has not. In view of this, it may as well
be that the Court has no jurisdiction to entertain the present appeal because
of what has been held in Navin Chemicals Manufacturing and Trading Co. Ltd. v.
Collector of Customs' as there is yet no assessment for the period in question.
So, we refrain.
appeal, therefore, stands dismissed. To protect the interest of the appellant
we would, however, observe that if there has been any provisional assessment by
which exemption under notification No. 69-Cus/87 has been denied, it would be
open to it to prefer appeal(s) within a period of one month 1 (1993) 4 SCC 320:
JT (1993) 5 SC 362 32 from today, which it might not have done earlier because
of the pendency of this appeal. On this being done, the department shall not
raise the question of limitation. On the facts and circumstances of the case,
we make no order as to costs.