Skandia Cutting Dies Pvt. Ltd. vs Commissioner of Customs, Chennai>1998(06)LCX0168

1998(06)LCX0168

S/Shri S.L. Peeran, Member (J) and V.K. Asthana, Member (T)

Final Order No. 1213/98, dated 26-6-1998 in Appeal No. C/8/92-B2

CASE CITED

Jain Engineering v. Collector — 1987(09)LCX0020 Eq 1987 (032) ELT 0003 (S.C.) — Referred.......................... [Paras 1, 6, 7]

Advocated By : Shri V.S. Venugopalan, Consultant, for the Appellant.

Shri R. Victor Thyagaraj, SDR, for the Respondent.

[Order per : S.L. Peeran, Member (J)]. - This appeal arises from Order-in-Appeal, dated 19-9-1991 holding that the goods “Punches’ are not entitled to the benefit of Notification No. 42/78-Customs. It has been held that the item are interchangeable tools gets classified under Heading 82.05. The Notification 42/78-Customs is applicable only for goods which are classified under Chapter 84, since the subject goods are not classifiable under Chapter 84, they are not eligible for the said benefit. The citation of Supreme Court rendered in the case of Jain Engineering - [1987(09)LCX0020 Eq 1987 (032) ELT 0003 (S.C.)] has been held to be not applicable as the goods are not identical.

2. The appellants before the Assistant Collector also has asked for re-classification of the goods under Chapter 84 and to grant the benefit under the said notification. However, it has been rejected by merely holding they do not fall under Chapter 84. Thus both the authorities have not given speaking order as regards classification under Chapter 84 is concerned.

3. We have heard both sides. It was contended that punches imported are used on Clicking Press for working on Leather. The machine is a leather working machine falling under 84.41 CTA. The punches are not tools for hand tools, machine tools or power operated hand tools. The clicking press on which these dies are used is neither a hand toll falling under Heading 82.01/04 CTA nor a machine tool falling under Heading 84.45/48. They state that it is also not power operated hand tolls falling under 84.49 or 85.05 CTA. They state that the punches are appropriately classifiable under 84.42 as parts of leather working machine. Reference was also drawn to ITC Code Book (Import Licensing Policy - Aligned on harmonised system of commodity classification) published by Ministry of Finance. In terms of the said Code Book, the punches used in leather industry, the code shown is 84531000.93 corresponding to Heading 8453.10 of Customs Tariff. They state that the heading corresponds to Heading 84.42 of erstwhile tariff, therefore, they state that punches are correctly classified under 8453.10, corresponding to 84.42 of old tariff. They state that the Notification No. 42/78 allows leather working machinery to be imported at a lower rate of duty. These being export oriented goods, the Government have rightly granted the concession. They state that “punches all sorts” are specifically covered by the said notification and the intention of the Government is to allow punches used in leather industry at concessional rate.

4. Arguing for the appellants, the learned Consultant Shri Venugopalan filed 25 Bills of Entry of various importers including the present importer who have imported but subsequently the same item and have classified under Chapter 84 sub-heading 8452.90 and has taken the benefit of notification. They submit that the Custom House has since been classifying the item only under Chapter 84 and, therefore, the non-grant of concession in one case is not proper. He submits that there was no detailed finding at all on the classification of the item except to say that it does not fall under Chapter 84 and the notification is applicable to only Chapter 84. Hence the order is a non-speaking order and is required to be set aside. He also referred to the HSN Notes which according to them clarifies the position for classification of the matter under Chapter 84 only.

5. Learned SDR reiterated the findings.

6. On a careful consideration of the submissions made, we agree with the learned Consultant that the impugned order is not a speaking order. Both the authorities have merely held that the notification speaks of punches falling under Chapter 84 and as the item falls under Chapter 82, hence, they are not entitled for the benefit. The aspect pertaining to classification has not been looked into by both the authorities, thus it is a non-speaking order. The Supreme Court judgment in the case of M/s. Jain Engineering v. C.C. - [1987(09)LCX0020 Eq 1987 (032) ELT 0003 (S.C.)] it has been merely brushed aside without looking into the ratio of the judgment and applying it to the facts of the case. The appellants have relied on the HSN Notes to press their claim for classification of the item under Chapter 84. They have also produced 25 Bills of Entry to show that the Custom House has since been classifying the item only under Chapter 84 and granting benefit. All these aspects have not been considered by the lower authorities and as the technical aspect of the matter has not been examined and classification itself not dealt with, it is but proper that the impugned order are set aside and the matter remanded to the original authority for de novo consideration.

7. The authorities shall consider the aspect of classification of the item under Chapter 84 and give a detailed speaking order in the light of the HSN Notes and also the ITC Policy relied by the appellants. The judgment of the Jain Engineering case cited by the appellants are also to be looked into. The appellants claim that the Custom House is classifying the items under Chapter 84 in terms of the 25 Bills of Entry is also to be considered by the lower authorities in the de novo proceedings.

8. Thus the appeal is allowed by remand to the original authority.

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Equivalent 2000 (124) ELT 583 (Tribunal)