Impex International vs Commissioner of Customs, Bangalore>2002(10)LCX0210

2002(10)LCX0210

IN THE CEGAT, SOUTH ZONAL BENCH, BANGALORE

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

IMPEX INTERNATIONAL

Versus

COMMISSIONER OF CUSTOMS, BANGALORE

Final Order Nos. 1280-1282/2002, dated 4-10-2002 in Appeal Nos. C/1168, 1170, 1171/98

Cases Quoted

HCL Ltd. v. Commissioner — 1998(09)LCX0219 Eq 1999 (108) ELT 0765 (Tribunal) — Relied on................. [Para 6]

Newsprint Trading & Sales Corpn. v. Commissioner — 1999(01)LCX0209 Eq 1999 (112) ELT 1007 (Tribunal)— Relied on [Para 6]

Pioneer International v. Commissioner — 1998(09)LCX0132 Eq 1999 (107) ELT 0476 (Tribunal) — Relied on. [Para 6]

Advocated By : S/Shri K.L. Jain, for the Appellant.

S/Shri L. Narasimha Murthy, JDR, for the Respondent.

[Order per : S.S. Sekhon, Member (T)]. - The issue involved in all these three appeals is the classification of Lumocolor Overhead Projection Pens made by the importers.

2. The lower authorities classified the goods under import under Customs Tariff Heading 9608.20 as writing pens instead of Customs Tariff Heading 9017.20 as drawing pens as claimed by the appellants. The appellant explained that similar pens were being assessed as drawing pens since 1982 by Madras Customs as well as Bangalore Customs and they were released as drawing pens under 9608.20 as late as December, 1997. The imports in the present case were in November, 1997.

3. The entities in question are pens with a fibre tip filled with a special kind of ink, which is non-permanent ink and they are used preparing the slides etc. for projecting graphical displays/ by writing on film; they can be used to write on glass, plastic, ceramic or metal as per the catalogue of the manufacturers.

4. The two Headings 9017.20 under Heading 9017 and Heading 9608.20 under heading 9608 reads as under : -

“Heading 9017.20 under Heading 9017:-

Drawing, marking-out or mathematical calculating instruments (for example, drafting machines, pantographs, protractors, drawing sets, slide rules, disc calculators); instruments for measuring length, for use in the hand (for example, measuring rods and tapes, micrometers, calipers), not specified or included elsewhere in this Chapter

9017.20: Drafting tables and machines, whether or not automatic

Heading 9608.20 under Heading 9608: -

Ball Point pens; felt tippes and other porous-tipped pens and markers; fountain pens, stylograph pens and other pens; duplicating stylos; propelling or sliding pencils; pen-holders, pen-holders and similar holders; parts (including caps and clips) of the foregoing articles, other than those of heading No. 96.09)

9608.20: Felt tipped and other porous-tipped pens and markers”

5. The scope of the HSN notes for 9017 indicates that, that heading includes drawing, marking-out or mathematical calculating instruments and instruments for measuring length. Since the subject entities under import are not exclusively for mathematical calculations or measurement, they do not appear to be classified under 9017; whereas 9608 includes all kinds of writing instruments especially fibre tipped and other pens and markers. Therefore, a classification arrived at under 9608.20 is correct and confirmed. We find no reason to upset the classification as arrived at by the lower authority.

6. We find that there is force in the appellant’s contention that when similar goods were released by Customs for 10 years, the same should have been released without imposition of any fine. In this connection, we find that Para 14(001) under Chapter 5 of Volume II, Customs Appraisal Manual reads as under : -

“14(1) Import of goods on the basis of clearance at other ports - In cases where the goods are imported against a licence or under OGL which is held by the Custom House not to cover the particular type of goods, but the importer produces evidence to show that he has been allowed to clear similar goods at another Custom House under the same licence or OGL, the goods may be passed without warning, but the other ports should be informed of the views and practice of the Custom House for uniformity of practice.

(Board's Letter F.No.8/112/57-Cus.VII, dated 3-1-58)”

The Department was bound to follow the same and allow the clearance in this case since established practice of a Custom House was to allow the clearance of such goods without fine. Established practice should not be abruptly changed that also without prior Public Notice. Therefore, even if the goods require a specific licence, they should have been cleared after issuing a warning when the established practice of classification and assessment was being changed from Custom Heading 9017 to 9608.20. The appellant has relied upon the following case laws : -

(a) HCL Ltd. v. C.C, New Delhi [1998(09)LCX0219 Eq 1999 (108) ELT 0765 (Trib.)]

(b) Newsprint Trading & Sales Corpn. v. C.C, Mumbai [1999(01)LCX0209 Eq 1999 (112) ELT 1007 (Trib.)]

Following the same, we should consider setting aside the Redemption Fine as imposed. The fine also cannot be sustained as it is imposed without determining the margin of profit and or considering the incidental costs incurred due to long delay in clearance.

7. In view of our findings, the classification of the goods is confirmed under 9608.20 and duties under that heading are to be recovered. The Redemption Fine as imposed are set aside. Appeals disposed off in above terms.

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Equivalent 2002 (146) ELT 0590 (Tri. - Bang.)

Equivalent 2002 (053) RLT 0813