JUDGMENT ORDER K.S. Jhaveri, J. —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 not agree with the department''s view of calculation of Customs duty charged on Jacquards treating the same as a separate machine & not 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. 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 not 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 not admissible on merits." 4. The authority has called upon the present appellant pursuant to the show cause notice to which the appellant filed reply which reads as under : - "3. At the very outset, we wish to submit that, show cause notice is wholly misconceived, patently wrong and void ab initio isasmuch as it seeks to deny the refund claim on the pretext that, "Jacquards'' is not the part of loom, and it is an independent auxiliary machine. In this respect we bring to your kind notice Jacquard 400E model is an attachment of Weaving machine, which has to be mounted on Weaving machine. Jacquard has no independent function and it is functionless without it being attached to the weaving machine. Jacquard is an integral attachment of Weaving machine, which is bring provided there to produce "Name Selvedge" on both sides of fabric. Noticee''s have Weaving machine of eighteen shafts capacity. These shafts are used to Fabric Body weave. Further the manufacturing of fabric with Name Selvedge on both side of border requires additional shafts and this operation is bring under taken by afixing Jacquard, with weaving machine. Noticee''s have Weaving machine of eighteen shafts capacity. These shafts are used to Fabric Body weave. Further the manufacturing of fabric with Name Selvedge on both side of border requires additional shafts and this operation is bring under taken by afixing Jacquard, with weaving machine. This goes on to prove that Jacquard in an attachment of weaving machine which is provided to enhance the utility of said machine. In other words additional working from Weaving machine Dobby can be acquired by afixing Jacquard because our Weaving machine Dobby has capacity of 18 shifts in all and capacity of Jacquard is 80 shafts (Hooks). By afixing Jacquard, capacity of weaving machine may be enhanced as it''s so shafts (hooks) may be used in addition to shafts of weaving machine i.e. 18+18=90. Thus Jacquard is used as an accessory or weaving machine which enable the same to be used more advantageously. It is important to note here that though "Jacquard" render a weaving machine more advantageous, but independently Jacquard itself is non-functional and useless. ''Jacquard'' is therefore part and parcel of loom in the capacity of an accessory of the Weaving Plant. The contention in respect thereof, sought to be raised in the Show Cause Notice, are unfounded and irrational by no logical reasoning a ''Jacquard'' can be termed as independent auxiliary machine, because from the foregoing submissions it is evidential beyond doubt that independently Jacquard is non-functional and useless, it become operative only when it is attached to a weaving machine. 4. From the forgoing it is clear that Jacquard is an integral part of weaving machine in the capacity of an Accessory which signifies aiding or contributing in a secondary or subordinate way. It is used to denote a role or status which is supplementary or secondary to something of greater or primary importance. The word accessory'' is used to suggest that something somebody is secondary or subordinate to another object for example a machine can perform without a given accessory. It is an undisputed and establish fact that the team ''accessories'' is used to describe goods which may have been manufactured for use as an aid or addition. The word accessory'' is used to suggest that something somebody is secondary or subordinate to another object for example a machine can perform without a given accessory. It is an undisputed and establish fact that the team ''accessories'' is used to describe goods which may have been manufactured for use as an aid or addition. A sense in which the word ''accessory'' as used is given in Websters, "Third New international Dictionary as follows; an object or device that is not necessarily required but if attached to the machine/machinary, it adds to it''s beauty, convenience or effectiveness. Other meanings given there are: "Supplementary or secondary to something of greater or primary importance, additional, any of several mechanical devices that assist in operating or controling the tone resources of an organ. The term ''accessory'' means something contributing in subordinate degree to a general result or effect an adjunct or accompaniment." 5. The authority while deciding the matter has considered the facts and disallowed on the ground which reads as under : - "As the "Jacquard" is not an integral part of the weaving machine & the said machine is separately classifiable under Customs Tariff Heading No. 8448.11 as auxiliary machine & the same was separately imported by the assessee and not along with the looms therefore the said Jacquard machine cannot be treated as parts of looms. Therefore, I am of the view that the benefit of concessional late of Customs duty applicable on looms under Notification No. 17/20010-Cus., dated 1-3-2001 cannot be extended to Jacquard machines." 6. The Appellate Authority has affirmed the same but the Tribunal while deciding the same has observed as under :- "4. After payment of duty the appellants lodged refund claim on the ground that duty was wrongly charged from them by classifying the machine under Tariff Heading 8448.11 as the machine was part of weaving machine and attracted lower rate of duty. In the fact of these facts, in our view, the Commissioner (appeals) has rightly rejected the claim of the appellants. They could lodge claim only after getting the Assessment order set aside. The assessment order has attained finality as it was never challenged by the appellants. In the fact of these facts, in our view, the Commissioner (appeals) has rightly rejected the claim of the appellants. They could lodge claim only after getting the Assessment order set aside. The assessment order has attained finality as it was never challenged by the appellants. In the case of Priya Blue Industries Ltd. v. CC (Preventive), 2004 (172) E.L.T. 145 (S.C.) , it has been observed by the Apex Court that refund claim contrary to assessment order, is not maintainable without order of assessment having been got modified in appeal or reviewed under Section 28 of Customs Act, 1962. Officer considering refund claim cannot sit in appeal over an assessment made by a competent officer. The Apex court has confirmed its earlier decision in Collector-I v. Flock (India) Pvt. Ltd. - 2000 (120) E.L.T. 285 (S.C.) . In the fact of this proposition of law laid down by the Apex Court, the refund claim of the appellants has been rightly rejected by the Commissioner (appeals). The impugned order passed by him being perfectly valid, is upheld." 7. The rejection is on the ground that the bill of entry which has been assessed is not challenged by the assessee therefore, he is not entitled for refund. However, counsel for the appellant has taken us to the notification which was in existence from 1st March, 2001 and bill of entry which was on 13th December, 2001 under the notification dated 1st March, 2001. 8. It is contended that the appellant was entitled to benefit of bill entry No. 245 being 84, 85 or 90 where machinery with equipment is required for the textile industry being liable to 5% of the excess duty. 9. In that view of the matter, the duty which has been paid now under entry 129 reads as under : - "Shuttleless looms (air jet, water jet, rapier and projectile" 10. Counsel for the appellant has strongly relied upon the decision of Supreme Court in case of Vintron Electronics Private Ltd. v. Commissioner of Central Excise, Delhi reported in (2012) 12 SCC 362 : 2012 (279) E.L.T. 161 (S.C.) wherein it has been held as under :- "13. We have carefully perused the impugned judgment and order. Counsel for the appellant has strongly relied upon the decision of Supreme Court in case of Vintron Electronics Private Ltd. v. Commissioner of Central Excise, Delhi reported in (2012) 12 SCC 362 : 2012 (279) E.L.T. 161 (S.C.) wherein it has been held as under :- "13. We have carefully perused the impugned judgment and order. In the impugned order, the Judicial Member of the Tribunal merely proceeds to decide the issue on the ground that the Assessee had classified the goods in question under Sub-Heading No. 8473.00, and therefore, it was not open to him to claim classification under Sub-Heading No. 8471.00 so as to enjoy a lesser rate of duty. The other Member of the Tribunal (Technical) proceeds to decide the issue by applying Chapter Note 5(a) and 5(b) of Heading 8473 to reach the same conclusion. 15. In a commodity classification for the purpose of the Central Excise Act, it is essential that the character and uses of the commodity and its parts are considered in detail and examined thoroughly, before arriving at a conclusion. In CCE, Delhi v. Carrier Aircon Ltd., (2006) 5 SCC 596 , this Court held : 14. ..........There are a number of factors which have to be taken into consideration for determining the classification of a product. For the purpose of classification the relevant factors inter alia are statutory fiscal entry, the basic character, function and use of the goods ..... 16. The Tribunal is expected to understand the factual scenario with regard to the goods whose classification has fallen for their consideration and decision, before applying the law on the issue. We find that this exercise has not been undertaken by the Tribunal. The nature and character of the products in question (namely, add-on cards and motherboards) and their functions with regard to Automatic Data Processing Machine and other machines has not been scrutinized. Therefore, we are left with no other alternative but to remand the matter to the Tribunal to decide the issue after considering the nature and the functions of add-on cards and motherboards in the functioning of Automatic Data Processing Machines." 11. Counsel for the respondent has supported the order of the Tribunal and contended that bill of entry was not challenged therefore, in view of the decision of Gujarat High Court in case of State of Gujarat & 2 Ors. v. Reliance Industries Ltd. & 5 Ors. Counsel for the respondent has supported the order of the Tribunal and contended that bill of entry was not challenged therefore, in view of the decision of Gujarat High Court in case of State of Gujarat & 2 Ors. v. Reliance Industries Ltd. & 5 Ors. reported in (2011) SCC 503 (Guj.) wherein it has been held as under :- 70. The Supreme Court in the case of Escorts Limited v. Union of India, reported in 1998 (97) E.L.T. 211 (S.C.) , has held that when a Bill of Entry is filed by an importer giving the particulars of the goods, the assessing officer signs the Bill of Entry and signifies his approval, that itself is an order of assessment. Similarly, the Bombay High Court has, in the case of Karan Associates v. Commissioner of Customs, reported in 2009 (236) E.L.T. 23 (Bom.) held that the assessment on the Bill of Entry is itself an appealable assessment order." 12. While summarily rejecting the SLP filed by M/s HCL Petro Systems Ltd. against CEGAT order dated 10th March, 2003, the Supreme Court passed the following order : - "Delay condoned. We see no reason to interfere. The Civil Appeal is dismissed. The Appellate Tribunal in its impugned order after following the Supreme Court order in the case of Collector of Central Excise, Kanpur v. Flock (India) Pvt. Ltd. reported in 2000 (120) E.L.T. 285 (S.C.) , had held that refund claim was not maintainable when the importer had not challenged the assessment order on the bill of entry by way of appeal." 13. He contended that the bill of entry was not challenged therefore, this appeal deserves to be dismissed. 14. We have heard counsel for both the sides. 15. The contention raised by the appellant is based on the show cause notice dated 20th May, 2002 and even the first authority and second authority have considered the bill of entry and the attachment which was liable for the Jacquard. 16. In view of the entry 245 any attachment which connected with the textile industry and the machine is used for textile industry therefore, the issue is covered by notification dated 13th February & 1st March, 2001 under entry No. 245 and the assessee is liable to pay only 5% of Customs duty. 17. 16. In view of the entry 245 any attachment which connected with the textile industry and the machine is used for textile industry therefore, the issue is covered by notification dated 13th February & 1st March, 2001 under entry No. 245 and the assessee is liable to pay only 5% of Customs duty. 17. In that view of the matter, the show cause notice which was issued for refund is required to be set aside. The appellant is entitled for the refund. 18. The issue is required to be answered in favour of the assessee against the department. The refund will be issued within three months from today. 19. The appeal stands allowed to the extent as indicated above.