1997(12)LCX0307

IN THE CEGAT, SOUTH ZONAL BENCH, MADRAS

S/Shri V.P. Gulati, Vice President and T.P. Nambiar, Member (J)

SPIC LTD.

Versus

COMMISSIONER OF CUSTOMS, CHENNAI

Order No. 3142/97, dated 8-12-1997 in Appeal No. E/1225/89-B2

Advocated By : Shri K.R. Natarajan, Advocate, for the Appellant.

Shri M. Rama Rao, JDR, for the Respondent.

[Order per : V.P. Gulati, Vice President]. - The issue in the appeal relates to the benefit of Notification 208/87. The appellants’ goods had been earlier assessed at the time of clearance under Tariff Heading 9032.89. The appellants subsequently claimed refund seeking the benefit of Notification 112/87. The Assistant Collector (Refunds), however, held, after taking into consideration the goods as had been described in the appellant’s documents, as being assessable under Tariff Heading 85.37 and benefit of Notification 112/87 was not made available as the same was applicable only in respect of items falling under 90.32.

2. Before the learned lower appellate authority, the appellants contested the reclassification and their this plea was rejected as the learned lower appellate authority noticed that the goods had been described as electric switch cabinet, in their proforma invoices and, therefore, he held their goods to be classifiable under 8537.10. Before us, in the appeal memorandum, the appellants have sought for re-classification under 9032.89.

3. The learned Advocate for the appellants, after referring to the description of the goods as given in the proforma invoice has stated that he is not pressing his plea for classification under 9032.89 and has prayed that the appellants should be given the benefit of Notification 208/87, dated 12-5-1987 in respect of the auxiliary duty which is available in respect of the goods which function under circuits of over 400 V and over 1.5 KVA rating. He has pleaded as per the proforma invoice, the ratings of the said boards in question is above these parameters and, therefore, the appellants would be entitled to the benefit of Notification 208/87-Cus. under the items covered under Sl. No. 17 of the Table to the notification.

4. Heard the learned JDR for the department.

5. We observe, inasmuch as the question of classification under 8537.10 is not contested, we uphold the same. As to the benefit of Notification No. 208/87-Cus., dated 12-5-1987, we observe that before the lower authority the appellants have not claimed benefit of this notification. The plea of the appellants is they were hoping that the reclassification under Tariff Heading 9032.89 will be accepted and, therefore, omitted to stake their claim under this notification. He has pleaded that the benefit of this notification is available and no further details are required to be gone into and sought for relief in this regard.

6. On perusal of the proforma invoices, the position as confirmed by both the sides is that the goods in question are for use in circuits over 400 V and of over 1.5 KVA rating. In that background, the appellant would be entitled to the benefit of Notification 208/87 and we hold that this benefit has to be allowed to the appellants. Ordered accordingly.

7. The refund will be subject to the amended provisions of Section 27 of the Customs Act regarding unjust enrichment.

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Equivalent 1999 (111) ELT 819 (Tribunal)