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PETITIONER: BALBIR SINGH

       Vs.

RESPONDENT: STATE OF PUNJAB

DATE OF JUDGMENT08/02/1994

BENCH: REDDY, K. JAYACHANDRA (J) BENCH: REDDY, K. JAYACHANDRA (J) RAY, G.N. (J)

CITATION:  1994 AIR  969            1994 SCC  Supl.  (2)  26  JT 1994 (1)   427        1994 SCALE  (1)419

ACT:

HEADNOTE:

JUDGMENT: The 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. 2.The aforesaid notification held the field till February 28, 1986, whereafter 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. 3.The  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. On 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. 4.A  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

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not been given opportunity to put forth its ground. 5.Shri  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. 6.Let  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 :               "With 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.               If the 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." 7.  The 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

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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. 8.  We  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. 9.   The  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. This 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. 10.The  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.