Page 148 - ELT_2nd_15th April 2020_Vol 372_Part

194 EXCISE LAW TIMES [ Vol. 372

[Order]. - Heard Learned Counsel for the parties.
2. We find no reason to depart from the finding of fact recorded by the
authorities which commended to the Customs, Excise and Service Tax Appellate
Tribunal that the machines in question undisputedly were declared as “M/C for
use in leather footwear industries injection moulding of PVC/TPR/EVA soles
with STD ACC Model global 138/150”, therefore, not covered under Heading
8453 of the Customs Tariff (i.e. machinery for preparing, tanning or working
hides, skins or leather or for making or repairing footwear or other articles of
hides, skins or leather, other than sewing machines).
3. The fact that the notification dated 23rd March, 2010 refers to exemp-
tion from the levy of anti-dumping duty imposed on machinery used for making
footwear and footwear sole/strap/heel will be of no avail to the appellant as the
said machine should necessarily fall under classification No. 8453, which in the
present case is not exclusively used for the purpose so specified under that cate-
gory.
4. The argument of the appellant that the entry 8453 refers inde-
pendently to ‘Machinery for making or repairing footwear’, cannot be countenanced.
For, that expression will have to be understood in the context of the heading
dealing with ‘Machinery for preparing, tanning or working hides, skins or leather’.
5. The fact that in some other case benefit has been given to the import-
er on the basis of clamping force being less than 40 tons, also, will be of no avail
to the appellant as that contention was not specifically taken by the appellant
before the authorities concerned, being question of fact.
6. Hence, this appeal fails and the same is dismissed.
_______

2020 (372) E.L.T. 194 (Guj.)
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
S.R. Brahmbhatt and Dr. A.P. Thaker, JJ.
OIL AND NATURAL GAS CORPORATION LTD.
Versus
UNION OF INDIA

R/Special Civil Application No. 19096 of 2018, decided on 20-2-2020
Refund - Excess duty paid on import of machinery as part of turnkey
project - Delay in processing refund claim - Petitioner aggrieved by impugned
order calling upon petitioner to produce documentary evidences for purpose
of examining aspect of unjust enrichment - HELD : Order impugned clearly
and unequivocally indicates that petitioners entitled for refund and interest -
However, as per reasoning of authority passing impugned order, petitioner
failing to establish that duty amount not based on end-user or consumers -
Process involved in processing refund casts serious duty upon concerned
officer to advert to facts pleaded before authority for coming to conclusion that
though refund payable, same required to be deposited and paid in Consumer
Fund for want of any document or other evidence to indicate that payment of
refund would not result into “unjust enrichment” to recipient - Impugned or-
EXCISE LAW TIMES  15th April 2020  164