ORDER
K. Sankararaman, Member (T)
1. The appellant imported a consignment of “One Meltog 157 Mark II Bodymaker complete with In-link Hopper feed with integral vacuum suction system which was assessed under Tariff Heading 84.59(2). Along with the aforesaid item was also imported a Side Seam soldering unit close coupled to and driven from the Bodymaker. The latter was classified under Tariff Heading 84.59(1). The appellant cleared goods on a payment of duty as assessed and thereafter filed the refund claim. The Internal Audit Department of the Custom House raised an objection questioning the classification and assessment of the second item. The concerned Appraising Group justified the assessment made of the subject item and the objection was closed. The appellant was also asked to file the catalogue to explain the function of the equipment. It is mentioned in the order that the catalogue was produced which indicated that it was capable of functioning independent of the equipment at Sl. No. 1. It was held by the Assistant Collector that the equipment in dispute did not produce any commodity by itself. On the above reasoning Tariff Heading 84.59(1) was justified. The Assistant Collector passed accordingly an order in assessment holding that the duty charged under Tariff Heading 84.59(1) was correct. Aggrieved with this order the appellant approached the Collector of Customs (Appeals) who, vide his order in appeal dated 8-4-1988, upheld the order. Hence the present appeal.
2. Shri K.K. Anand, learned Counsel for the appellant states that the order in assessment did not refer to the refund claim filed by them and also did not dispose of the same. He contended that the soldering unit had been imported along with the bodymaker and was to function in conjunction with the former. Without such soldering the goods, namely, metals containers could not be manufactured. He, therefore, contended that it was essential for the manufacturing operation and it was used for manufacturing such products. In the circumstances, the classification of the goods under Tariff Heading 84.59(2) as claimed by them would be appropriate. In support of his contention he relied on a decision of the Tribunal CC, Bombay v. Zipper (I) Products reported in 1996 (84) E.L.T. 193 (Tribunal). He explained that in the said case the import was of various machines which were required to be used for the manufacture of zippers. It was held by the Tribunal that such machines required for the manufacture of the product were classifiable under Tariff Heading 84.59(2).
3. The arguments were opposed by the learned SDR, Shri Satnam Singh. He also stated that there is nothing in the order passed by the Assistant Collector that a refund claim had in fact been filed by the appellant which was pending before the Assistant Collector and that it was pending when the assessment order in question was passed. He supported the finding that the soldering machine being capable of independent functioning would be correctly classifiable under Tariff Heading 84.59(1) as in fact it had been assessed to duty. In support of his contention he cites two decisions reported in 1989 (41) E.L.T. 587 and 1997 (90) E.L.T. 119 and contends that the findings in these decisions regarding machines capable of independent functioning being classifiable under Tariff Heading 84.59 would support the decision of the authorities below.
4. In the present case we find that the Bill of Entry was originally assessed to duty classifying the goods in question under Tariff Heading 84.59(1). The appellant was aggrieved with this classification and had filed a refund claim seeking reassessment in terms of classification under Tariff Heading 84.59(2). This claim had not been disposed of at all on merits. There is no reference to the claim in the assessment order. That order was passed as a result of audit objection which apparently raised the contention as was done by the appellant himself under the refund claim. The audit objection was replied by the Assistant Collector justifying the classification originally carried out and it is stated in the assessment order that audit objection was duly closed. The appellant was also asked to clarify function of the machine and asked to submit the relevant catalogue. On a perusal of the catalogue which was submitted by the appellant, the original assessment was reiterated and the impugned order in assessment was passed. This order was upheld by the Collector (Appeals) also. As however, the contention has been raised before us about the correct classification being under 84.59(2) in support of which a Tribunal decision in respect of machines used in the manufacture of zippers has been cited, we feel it appropriate to dismiss the present appeal as infructuous as the refund claim itself is pending and had not been disposed of. We direct the Assistant Collector to deal with the refund claim on merits (as the dismissal of the present appeal is not on merits) after granting a personal hearing to the appellant.