1983(01)LCX0013

IN THE CEGAT ‘SPECIAL BENCH D’, NEW DELHI

PRESENT : Shri S. Venkatesan, Sr. Vice-President, Smt. S. Duggal, Member (J) and Shri K.L. Rekhi, Member (T)

GENERAL ELECTRIC COMPANY OF INDIA LTD., CALCUTTA

Versus

COLLECTOR OF CUSTOMS, CALCUTTA

Order No. D-16/83, dated 3-1-1983.

CONSULTANTS : Shri J.N Roy, for the Appellants.

Shri M. Chatterjee D.R., for the Respondents.

[Order]. - In this case, flame proof well glasses imported by the appellants were assessed under heading 70.21 of the Customs Tariff Act, 1975 read with item 23A(4) of the Central Excise Tariff. The appellants claimed refund of the differential duty saying that the goods were lighting fittings falling under Chapter 85 Customs Tariff Act and attracted the concessional rate of duty contained in notification No. 106/77-Cus. Their claim for reassessment of basic customs duty was rejected by the Assistant Collector but he revised the assessment of countervailing duty by admitting classification under item 23A(3) Central Excise Tariff. The Appellate Collector upheld the Assistant Collector’s orders.

2.  The case was argued before us on 3-1-1983. Shri J.N. Roy appeared for the appellants and Shri M. Chatterjee for the Department.

3.  Shri Roy showed a sample of the goods imported and stated that the impugned flame proof well glasses were designed to BSS : 889 of 1965 which recognised the goods as components of lighting fittings, that ISS : 2206 (Part-I -1962 and the trade catalogue of M/s GENELEC also recognised them similarly, the notification No. 106/77-Cus.., which gave duty concession to a number of mining safety articles specifically listed lighting fittings (flame proof) at S. No. 5 and said that these fittings fell in Chapter 85 and that the goods imported were not glass envelopes but insulating fittings for electrical equipment which were not excluded from Chapter 85 but which, on the contrary, were excluded from item 23A Central Excise Tariff by virtue of the Explanation contained in the said item. Shri Roy sought reassessment of the goods for basic customs duty under Chapter 85 of Customs Tariff Act read with notification No. 106/77-Cus., and requested also for consequential relief in the countervailing duty.

4.  Shri Chatterjee countered the appellants’ request by saying that Chapter 70 Customs Tariff Act and item 23A CET relating to glassware were specific for the goods imported which were nothing but glass envelopes and which were excluded from the scope of Chapter 85 Customs Tariff Act by Chapter Note 1(b) that since the goods did not fall in Chapter 85, the concession under notification No. 106/77-Cus., was not applicable to them and that the plea of the goods being insulating fittings for electrical equipment was put forth for the first time now only during hearing before the Tribunal and was in any case not entertainable as the goods were nothing more than outer glass shells or envelopes for electric lamps which were excluded from the scope of Chapter 85.

5.  We have given our earnest consideration to the matter. On seeing the sample, we find that the goods are not lighting fittings as such but only outer glass shells of electric lamps used in mines. The Department is right in contending that these glass shells are synonymous with “glass envelopes for electric lamps, .....................” which have been specifically excluded from Chapter 85 Customs Tariff Act by Note 1(b) contained at the beginning of the said Chapter. Since these provisions of the Tariff are statutory, the plea that BSS, I.S.I, and trade catalogue recognise the impugned glass shells as components of lighting fittings cannot alter the legal position. Notification No. 106/77-Cus. does not say that all lighting fittings (flame proof) fall in Chapter 85. On the contrary, what the notification says is that only such lighting fittings (flame proof) which fall in Chapter 85 would get the concession contained in the said notification and since glass envelopes or shells for electric lamps are specifically excluded from Chapter 85, they go out of the scope of notification 106/77-Cus.., too and for the same reason the belated plea of their being brought in Chapter 85 as insulating fittings for electrical equipment is also not tenable.

6.  Accordingly, we uphold the impugned order and reject the appeal.

______

Equivalent 1983 (12) ELT 384 (C.E.G.A.T)