2000(04)LCX0245

IN THE CEGAT, SOUTH ZONAL BENCH, CHENNAI

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

KARNATAKA POWER CORPN.

Versus

COMMISSIONER OF CUSTOMS, CHENNAI

Final Order Nos. 541-544/2000, dated 25-4-2000 in Appeal Nos. C/2248/88 & C/191-193/96

All India Glass Manufacturers’ Federation v. Collector — 1991(08)LCX0022 Eq 1991 (055) ELT 0005 (S.C.)
— Relied on............................................................................................................... [Paras 6, 7]

Collector v. Doaba Co Operative Sugar Mills — 1988(08)LCX0067 Eq 1988 (037) ELT 0478 (S.C.) — Referred ... [Para 7]

Haryana Distellery v. Collector — 1992(06)LCX0043 Eq 1992 (062) ELT 0773 (Tribunal) — Followed............. [Paras 6, 7]

Indian Telephone Industries v. Collector — 1983 ECR 944 — Referred................................ [Para 7]

Miles India Ltd. v. Assistant Collector — 1987 (030) E.L.T 641 (S.C.) — Referred................ [Para 7]

ONGC v. Collector — 1988 (034) ELT 0284 (Tribunal) — Referred....................................... [Para 7]

Premier Tyres Ltd. v. Collector — 1983(12)LCX0019 Eq 1984 (016) ELT 0419 (Tribunal) — Referred.................... [Para 7]

Advocated By :   Shri A. Vijayaraghavan, Consultant, for the Appellant.

Shri S. Sudarsan, DR, for the Respondent.

[Order per : V.K. Asthana, Member (T)]. - Appeal No. C/2248/88-B is against OIA No. M. Cus. 907/88 dated 21-4-88 which had considered classification of epoxy bars but rejected the appellants claim for classification under CTH 85.01 (1).

2. Appeal Nos. C/191 to 193/96-MD against OIA Nos. 1702, 1703 & 1704/95 dated 18-9-95 which considered the classification of epoxy coils but rejected appellants claim for classification under CTH 8503 and availing exemption under Notification. No. 172/89 dated 27-5-1989. Custom House had classified these as insulated wires under 8544.11. Claim for shortages in goods received and claim for project imports were also rejected. The main ground for rejection of appeals was that appellants had claimed different classification in their Refund claims before original authority (rejected) and that in appeal before the Ld. Collector (A), the change in claimed classification had increased the duty refund sought significantly, despite the time bar of 6 months. The claim for shortages is also rejected on similar grounds of time bar.

3. Heard Shri A. Vijayaraghavan, Ld. Consultant for appellants and Shri Sudarsan, Ld. DR.

4. Since the order impugned in appeal C/2248/88-B had considered the issue on merits, but since the order impugned in the appeals C/191 to 193/88 had not done so, these appeals should not have been linked. Registry and Ld. Consultant having done so, these were heard together and are necessarily being considered by this common order.

Appeal Nos. C/191-193/88

5. Ld. Consultant submits that as far as appeals C/191-193/88 are concerned, they concern import of epoxy coils which were to replace previously installed coils in the Sharavathi Power Plant. He explains that their initial classification was under 8501 but since that heading relates to generators themselves, it was revised to 85.03 as parts of generator. That is why the amount increased. The Ld. Collector did not consider the issue on merits but merely rejected on time-bar, thus the impugned order goes beyond the order-in-original.

6. Ld. DR submits that the reclassification under 85.03 was claimed after three years, and that too before Collector (Appeals). Since the ground of refund claim itself was changed by the appellants, this tantamounted to a refund claim based on fresh grounds after expiry of 6 months time limit. He cites Haryana Distellery v. CC as in 1992(06)LCX0043 Eq 1992 (062) ELT 0773 (T). Therefore, the order impugned had correctly rejected the appeal on time bar. He also submits that since goods were cleared a long time back, reclassification cannot be considered now in view of 1991(08)LCX0022 Eq 1991 (055) ELT 0005 (S.C.).

7. We have carefully considered these submissions and records of the case. The Custom House had assessed the concerned Bs/E for the item viz. Expoxy insulated single turn half coils under CTH 8544.11 and Notification 134/86. Refund claims were submitted claiming classification under 8501.64/9801. Since goods were not electric generators (8501.64) therefore refunds were rejected in 1995 but without hearing them. In their appeal before Collector (Appeals) against rejection of these claims, appellants sought a new classification under 8503. As a result the Ld. Collector noted in the orders impugned that the grounds of appeal as well as the refund amount being different than that before the original authority, the matter was time barred. This raises a question of law as to whether, when a new classification is suggested before an appellate authority, the consequential relief flowing out of it can become time-barred, if the original issue pertained to a refund claim on other grounds? The Tribunal by a majority decision in Premier Tyres Ltd., Kalamassery as in 1983(12)LCX0019 Eq 1984 (016) ELT 0419 (T) had held that "an [amendment] in a claim could be made even after expiry of limitation period" in view of order 6, Rule 17, CPC, and relying upon 1967 (1) SCR 796. The minority view was that Tribunal had no such powers and was bound by limitation period under Section 27 ibid. However, later, in Haryana Distillery v. CC in 1992 (62) E.LT. 773 (Tri.) the Tribunal reconsidered this issue and held to the contrary even after considering Premier Tyres Ltd. (supra). It was held that when original claim before Asst. Collector was only regarding CVD, then a new claim on classification made before Collector (Appeals) was time barred. The Tribunal noted that in ONGC v. CC in 1988 (034) ELT 0284 (T), that the decision in Premier Tyres Ltd. (supra) being in conflict with Miles India Ltd. in 1984(04)LCX0035 Eq 1987 (030) ELT 0641 (S.C.), was to be discarded, and that the time-limit under Section 27 ibid was not only mandatory but also applied to the Collector (Appeals). The Tribunal also relied upon CCE v. Doaba Co-Op. Sugar Mills as in 1988(08)LCX0067 Eq 1988 (037) ELT 0478 (S.C.). In Indian Telephone Industries v. CC as in 1983 ECR 944, the Tribunal had similarly held that as no claim for reassessment of basic customs duty was made within 6 months, therefore an entirely new claim could not be made later. In view of these, it is our considered view, that the Ld. Collector (00A) did not err in holding the matter as time barred before him as the new classification under 8503 before him was made much after the expiry of 6 months from the relevant date. There is also no infirmity in his findings that as no registration under Project Imports for these imports had been done, therefore Chapter 98 was also ruled out. The Ld. Collector had also rightly held that since goods were already cleared from Customs custody, therefore reclassification was not possible. This view is supported by All India Glass Manufacturers' Federation v. CC in 1991(08)LCX0022 Eq 1991 (055) ELT 0005 (S.C.). We do not find any merit in Ld. Consultant's submission that the orders impugned go beyond the order-in-original because Ld. Collector (Appeals) had to necessarily address himself to the appellants fresh claim for a new classification which was not before the original authority. The appellants cannot simultaneously blow hot and cold on this issue.

8. In view of above analysis, we do not find any merit in these appeals which compel us to interfere with the order(s) impugned and the appeals are rejected.

Appeal No. 2248/88

9. Ld. Consultant strenuously argued that since the epoxy bars imported were designed for the electric generator, therefore would fall under 85.01 in view of Chapter Note 2 (b) to Section XVI, being only suitable for use with the generator.

10. Ld. DR submits that parts of generator would be subject to Note 2 (a) to Section XVI which laid down that parts which are of goods of Chapter 85, are to be classified under their Note respective headings. He counters that Note 2 (b) would apply only after application of Note 2(a) is ruled out. Further, he submits that Heading 8518/27(1) being more specific, should be preferred.

11. We have carefully considered these submissions. At the very outset, we are surprised to find that the appellants have been shifting their stand on classification of claimed parts of generators in as much as that while in Appeals C/191-193/88 (considered above) they had agitated that epoxy coils would fall under 85.03 as parts of generator, in this appeal they claim that epoxy bar, again as parts of generator, would fall under 85.01(1).

12. On a careful consideration we find great merit in Ld. DR's submissions that Note 2(b) to Section XVI cannot apply unless Note 2(a) is ruled out, because Note 2(b) applies to "other parts" i.e. parts other than those covered by Note 2(a). Therefore, there is no merit in the appellants claim to classification under 85.01 as a generating set (read with Note 2(b) ibid).

13. In view of the aforesaid analysis and findings, we do not find anything in this appeal which compels us to interefere with the order impugned and the appeal is rejected.

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Equivalent 2000 (123) ELT 1051 (Tribunal)

Equivalent 2000 (039) RLT 0707