ORDER
P.G. Chacko, Member (J)
1. The appellants are a Public Sector Undertaking who have obtained necessary clearance to pursue this appeal before this Tribunal.
2. They had imported lubricating oil by name “Crownform 1820 Oil” and some additives thereof, and sought to clear the items under the following Bills of Entry.
(i) Bill of Entry dt. 28-12-1993
(ii) Bill of Entry dt. 29-12-1993
(iii) Bill of Entry dt. 28-9-1994
(iv) Bill of Entry dt. 23-12-1994
The appellants could not produce the technical literature relating to the imported goods. They paid duties of Customs on the goods as assessed at the time of clearance. In respect of the goods covered by the first two consignments, the appellants paid additional duty of Customs at the rate of 70% as insisted by the assessing authority which classified the goods under Customs Tariff sub-heading 3204.11 whereas the claim of the appellants was that the goods were classifiable under Customs Tariff sub heading 2710.00 attracting CVD only at the rate of Rs. 5000/- per M.T. In respect of the last two consignments, the appellants, at the time of clearance, paid basic Customs duty at the rate of 65% and CVD (Additional Duty of Customs) at the rate of 20% as insisted by the assessing authority which classified the goods under Chapter 34 of the Customs Tariff Schedule whereas the claim of the importer was that the goods were classifiable under sub-heading 2710.00 attracting BCD and CVD at the rates 30% and 10% respectively. The above payments, however, were not under protest. Nevertheless, the appellants applied for refund of what they claimed to be excess payments. The original authority passed the following order:
“FINDINGS
No sample was drawn from the consignment for chemical analysis. In the absence of test the assessment of the imported goods on the higher side under 3204.11 is in order and hence these claims merits rejection.
ORDER
In view of the above findings, the above form claims are rejected as inadmissible.”
Aggrieved by the above order, the appellants preferred an appeal to the Commissioner (Appeals). Before the appellate authority, they produced the test reports from the Customs House laboratory pertaining to the last consignment aforementioned covered by the Bill of Entry dated 23-12-1994. The Commissioner (Appeals) considered the test report as well as the technical literature produced by the party and upheld the order of the lower authority. Hence this appeal.
3. Heard both sides.
4. Shri K.A. Sridhar, representing the appellants, submits that the original authority classified the goods as proposed by the Department on the sole ground that samples were not drawn from the consignments for chemical analysis and no test report available in respect of the goods. He submits that the report of chemical analysis conducted by the department laboratory was made available to ld. Commissioner (Appeals). The technical literature on the goods was also submitted, but the classification as decided by the original authority was affirmed by the first appellate authority without any valid reason.
5. Ld. SDK seeks to defend the impugned order on the strength of the findings recorded therein. Both sides concede that the adjudicating authority had not examined the classification dispute on its merits.
6. Having examined the records and the submissions, we agree that the original authority had not looked into the classification dispute in the manner a quasi-judicial authority ought to have. We have already extracted the order of the original authority. That authority has, without examining the rival claims on merits, held that “in the absence of test, the assessment of the imported goods on the higher side under sub-heading 3204.11 is in order and hence the claim merits rejection.” The fact, however, remains that no test report was available to that authority. It was before the lower appellate authority that the appellants for the first time produced the test report. That authority examined the test report and other materials and took a decision on the classification dispute. Thus, in this case, the lower appellate authority virtually had to act as adjudicating authority, a situation which is not contemplated in law. Therefore, the classification dispute ought to be addressed by the original authority in the light of all the available materials. The orders of both the lower authorities are set aside and the present appeal is allowed by way of remand. The adjudicating authority shall examine the dispute over classification of the subject goods in the light of the available test report, technical literature and submissions of the party and pass a speaking order thereon after affording to the party a reasonable opportunity of being heard.