K.S.JHAVERI,J. - (1.) By way of this appeal, the appellant has assailed the judgment and order of the Tribunal whereby the Tribunal has dismissed the appeal preferred by the assessee.
(2.) This Court while admitting the matter framed the following questions of law:- "(i) Whether the Appellate Tribunal could travel beyond the scope of the allegations levelled in the show cause notice and decide the appeal, rejecting the refund claim of the appellant, on the basis of issues/allegations not raised in the show cause notice?" (ii) Whether customs duty on imported goods at the time of debonding of 100% E.O.U., is to be assessed and levied based on classification of goods depending on their usage at the time of debonding or on the basis of classification made at the time of their import." (iii) Whether Jacquard machine are classifiable as part of the Weaving machine (looms) so as to be entitled to the benefit of Notification No. 17/2001-Cus., dated 1-3-2001 available to looms or can be used independent of the Weaving machine (looms) so as to be separately classifiable and assessed as an independent auxiliary machine?"
(3.) Counsel for the appellant Mr. Gupta has taken through the show cause notice issued by the authority wherein refund claimed by the appellant was refused. The show cause notice reads as under:- "Whereas, at the time of debonding of the 100% EOU, the duty liability in respect of the imported Jacquard machine was ascertained as Rs. 14,85,561/- and vide this office letter C.No.V (Tech) 30/39/2001/8430, dated 13-12-2001, the assessee was asked to deposit the same. The assessee deposited Rs. 14,85,561/- vide TR-6 challan No. 2, dated 14-12-2001, the assessee did agree with the department's view of calculation of Customs duty charged on Jacquards treating the same as a separate machine and as part of looms. The assessee is of the view that the Customs duty amounting to Rs. 2,70,173/- should be charged as capital goods since Jacquard is attached with Sulzer Rufi shuttleless weaving machine and thus Customs duty amounting to Rs. 12,15,388/- has been excess paid by them, for which they have paid filed a refund claim. Whereas, the leviability of Customs duty on Jacquards is concerned, the said machine was separately imported by the assessee and along with the looms and the said machine is separately classifiable under Customs Tariff Heading No. 8448.11 as Auxiliary machine, as such the same cannot be treated as parts of loom and it is independent auxiliary machine. As such concessional rate of Customs duty applicable on looms under Notification No. 17/2001-Cus., dated 1-3-2001 cannot be applicable on Jacquards machines and rather it should attract BCD @ 25% ACD @ 16% SAD @ 4% and Cess @ 0.05%. In view of the above, the Customs duty amounting to Rs. 14,85,561/- on Jacquard machine has correctly been paid by the assessee at the time of debonding of the 100% EOU. Thus the refund claim of Rs. 12,15,388/- filed by the assessee is admissible on merits.";