2007(03)LCX0226

IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, SOUTH ZONAL BENCH AT CHENNAI

P.G. Chacko, Member (Judicial) and P. Karthikeyan, Member (Technical)

Birla Pericalese

Versus

Commissioner of Customs, Chennai

Final Order No. 250/07 decided on 16.03.2007 in Appeal No. C/313/2000/MAS

Advocated By -

None for the Appellant
V. Seshagiri Rao, SDR for the Respondent

ORDER

P.G. Chacko, Member (Judicial)


1. This appeal is by the Assessee, who is neither present nor represented today despite notice. The Respondent is represented by SDR. We are not inclined to keep this old appeal pending.


2. The Appellants had imported "Rabble Arm for MHF (Multiple Hearth Furnace)" and filed a Bill of Entry on 5th June, 1998 for its clearance. The goods was assessed to duty under Sub-heading 7506.20 of the first schedule to the Customs Tariff Act on the basis of the technical write-up and test certificate of the supplier furnished by the importer. Basic Customs Duty (BCD) and Special Additional Duty (SAD) were paid, accordingly, and clearance of the goods obtained by the party. Subsequently, the Department issued a show cause notice on 28th December, 1998 proposing to classify the goods under Sub-heading 7325.99 and demanding differential BCD and SAD. This notice was based on a revised test certificate produced by the importer subsequent to clearance of the goods. This certificate provided the following chemical composition for eight samples of the goods.

The show cause notice stated that, on the basis of the above composition of the goods, it could be classified only under Sub-heading 7325.99 in terms of Section Note 5(a) to Section XV of the Tariff Schedule. On the date of filing of the Bill of Entry, the rates of BCD and SAD payable on the goods falling under the said tariff entry were 35 per cent and 8 per cent respectively. These duties were actually paid at the rate of 10 per cent and 4 per cent respectively as applicable to Sub-heading 7506.20. Hence, the demand of differential duties. The Original Authority confirmed the demand and the First Appellate Authority sustained the same. Hence the present appeal of the Assessee.


3. After examining the records and hearing Id. SDR, we find that the demand of duty is based on the test report furnished by the importers themselves. According to that report, the percentage of iron exceeded that of each of the other elements contained therein. Section Note 5(a) reads as under:

5. Classification of alloys (other than ferro alloys and master alloys as defined in Chapter 72 and 74):
(a) An alloy of base metals is to be classified as an alloy of the metal which pre-dominates by weight over each of the other metals;

We have also seen the definition of "ferro alloys" in Chapter 72 and that of "master alloys" in Chapter 74 of the Tariff Schedule and we find that the subject goods, not being in primary form and not containing copper, would not fall within the ambit of either of these definitions. Consequently, Section Note 5(a) gets attracted. As per this Note, the goods require to be classified as alloy of the metal which pre-dominates by weight over each of the other metals. The pre-dominant component in the subject goods is iron as per the test certificate and, accordingly, the goods would get classified under Sub-heading 7325.99.


4. It is not in dispute that, as on the date of filing of the Bill of Entry, goods falling under Sub-heading 7325.99 were chargeable to BCD at the rate of 35 per cent and SAD at the rate of 8 per cent in terms of Section 15 of the Customs Act. The importer would not get the benefit of the subsequent reduction of rate of SAD. The lower authorities have rightly demanded differential amounts of BCD and SAD from the Appellants and we sustain their decision. The appeal gets dismissed.

Equivalent 2007 (118) ECC 0495

Equivalent 2007 (144) ECR 0495 (Tri.-Chennai)

Equivalent 2007 (214) ELT 0440 (Tri.- Chennai)