2001(03)LCX0276

IN THE CEGAT, SOUTH ZONAL BENCH, BANGALORE

S/Shri G.A. Brahma Deva, Member (J) and S.S. Sekhon, Member (T)

MYSORE LAMP WORKS LTD.

Versus

COMMISSIONER OF CUSTOMS, MADRAS

Final Order Nos. 648-658/2001, dated 20-3-2001 in Appeal Nos. C/R-533-542/95, C/R-440/95

Advocated By :   Shri K.S. Ramabadran, Advocate, for the Appellant.

Shri Thomas George, JDR, for the Respondent.

[Order per : S.S. Sekhon, Member (T)]. - These appeals are filed by the appellant, a Karnataka State Government Undertaking engaged in the manufacture of Electric lighting bulbs, tubes, vapour discharge lamps for the purpose of manufacturing the same, they import on regular basis inputs viz Glass tubing of various types at Madras Port and filed declaration of the goods imported. The Bills of Entry were assessed and duties were paid. The goods were assessed and classified under Customs Tariff Headings 7011.10 & 7008.10 of Central Excise Tariff for purpose of CVD at NIL rate. Demand notices were issued under Section 28 of the Customs Act, 1962 and total C.V. Duty of Rs. 37,39,011/- was demanded as follows –

2. A perusal of the demand notices issued show them to be, of one page of identically worded notices, issued as printed billingual forms duly filled in with particulars of the imports made and the reasons under the blank space between printed phase -

“Whereas the Customs duty amounting to Rs. .................was not levied/ short-levied/erroneously refunded in respect of the above consignment for the reason stated.”

as “see on reverse”. The reverse had the following phrases written -

“The goods covered by this bill of entry attract CV Duty @ 40% + 15% SED which had been omitted at the time of original assessment.

This has resulted in the present short-levy of Customs Duty of Rs. 3,36,707/- (Rs. Three lakhs thirty-six thousand seven hundred and seven only) which should be paid immediately.”

in same cases the words were ‘leftout’ instead of ‘omitted’ used as above while in other cases it was –

“The two bills of entry noted overleaf had been originally assessed to Customs duty without CV duty which is not correct. Actually CV duty is very much chargeable at 40% + 15% of SED and the review of the assessment results in the present short levy of Rs..................”

in other notices only a mention is made about the earlier assessment being ‘not correct’. Only in one notice - (i.e. issued for BE No 1 + 0110, 881, dated 20-11-1992 the words are –

“The “quartz exhaust tubings” covered by the Bill of Entry had been assessed on finally without levy of CV Duty which is correct. Actually, these goods are correctly classifiable under Heading 7001.90/7008.10 CET which attract levy of CV Duty @ 40% + 15% SED which results a short levy of.............”

but in all notices, no reasons or material is given as regards the nature of goods, or the reasons to charge the classification as assessed on BE already cleared.

3. The replies were sent in all cases, seeking to know the provision of Central Excise Tariff under which the goods in question were chargeable to CVD. Photo copies of all such replies are on record. No replies were received for years, except the order of Assistant Collector, Customs House, Madras, dated 17-9-1994. This order has been passed without recording the facts of any personal hearing given or otherwise by recording. ‘The importer did not file any reply to the demand notice’. The Assistant Collector, as it appears from the copy of order on record after finding that the issue is whether the goods were classifiable under 70.01 CET or 7008 CET, and considering the HSN notes under 70.02 cover glass in balls, found tubes to be covered under 70.11 and thereafter relying on HSN note under 70.11 found -

“tubes which have narrowed ends or which have fluorescent coating or there which have been made into finished articles where or classifiable under 70.11, otherwise they are classifiable under 70.02 as mere tubes the impugned goods are tubes which do not have narrowed ends nor fluorescent coating. Being glass tubes of uniform decimeter, they are also not recognisable as finished articles. They are, therefore, classifiable under Heading 70.02 of HSN (equivalent to 70.01 of CET) and not under Heading 70.11”

Accordingly he ordered the classification under 7001.90 and confirmed the demands on all the BEs amounting to Rs. 37,39,911/-

4. The Collector of Customs (Appeals) issued another printed proforma filled in dated 31-1-1995 stated to be ‘Notice for duty/deposit of penalty under Section 129E of the Customs Act, 1962 which directed the appellants should pay the duty as determined within 15 days. If they wanted to represent against the said tentative conclusion, they were required to file a representation within 18 days.

However, this order did not disclose the authority to whom such representation should be filed. This notice conveyed that, if nothing was heard from them, the matter will be decided on the basis of record. This notice was not signed by Collector of Customs (Appeals) but was signed by some “illegible” signature ‘for Collector of Customs (Appeals)’. This was replied on 10-2-1995. A hearing was thereafter held by the Collector (Appeals) which resulted in an order dated 17-4-1995 rejecting the hardship plea and no waiver of the pre-deposit. This order also found that the classification was arrived at Based on the Minutes of Collectors of Customs held on lst/2nd Feb., 1995, on which a Public Notice No. 82/93 describing the classification to be under 7002 of CET Act was issued.

5. Thereafter, vide order M. Cus/323/95, dated 19-7-1995, the Collector (Appeals) found from the records that a personal hearing was fixed but not availed therefore, there is no denial of natural justice and he rejected the appeal for non-compliance of the pre-deposit as ordered by him, without giving into merits of the case or granting any hearing to the appellants.

6. The present appeals are against the above order dated 19-7-1995. We have heard the learned Advocate for the Appellants and the JDR for the Department and considered the matter and find-

(a)     It is well settled that Collector (Appeals) cannot dismiss an appeal for non-compliance of pre-deposit order without giving a hearing and going into the merits. The order impugned before us is, therefore, required to be set aside.

(b)     We have consider the matter and find that remanding the issue back to the original authority or the appellate authority, after setting aside the order, will not serve any purpose as we do not find any reasons given in the demand notices, for changing the classification, as arrived at ab initio by the Assistant Collector, assessment group. In fact, except for one notice, no notice even proposes any alternative heading for classification. The reasons in the order of the Assistant Collector, therefore, determining the nature of the tubes under import are not available. It is not known how it has been determined, that the impugned goods are tubes which do not have narrowed ends nor fluorescent coating. In absence of material on record, the issue cannot be settled. No purpose, therefore, will be served by remanding the matter back to redetermine the matter based on inadequate and badly drafted notices.

(c)      We find from the chart extracted herein above, the imports have been effected over a period of time. Notices were also being issued time to time. Then it is not understood, why in subsequent imports the new assessment proposed was not effected. The chart clearly exhibit that the appraising Group, Proper Officers, were aware of the fact that claim of classification was incorrect, yet they approved the assessment. We find that the Central Excise Authorities all over India had issued Trade Notices classifying the glass tubes, bulbs, etc., under 70.08 of Central Excise Tariff Act, 1985 as far back as in 1986. They are the best judge of the Central Excise Tariff. Any change, consequent to decision of Collectors of Customs in conference can be prospective only. If there is a doubt about the entity being under 7008.10 or 7001.9, then as per Rules of Interpretation 3(c) they have to be classified under the head i.e. 7008, if Sub-rules (a) and (b) are not available. We, therefore, do not uphold the confirmation of the demands of duty made in these cases.

(d)     In the view we are taking, we give no findings on the other grounds taken by the appellants.

7. In view of our findings, the orders of lower authorities are set aside and appeals allowed.

Equivalent 2001 (137) ELT 1401 (Tri. - Bang.)

Equivalent 2001 (045) RLT 0301