1983(03)LCX0005

IN THE CEGAT, SPECIAL BENCH `D’, NEW DELHI

CORAM : Shri S. Grover, Vice-President, Smt. S. Duggal, Member (Jud.) and Shri I.J. Rao, Member (Tech.)

BAKER MERCER (INDIA) PVT. LTD.

Versus

COLLECTOR OF CUSTOMS, BOMBAY

Order No. D-179/83, dated 28-3-1983

Advocated By : Shri R.J. Majra, Advocate, for the Appellant.

Shri Kunnikrishnan, JDR, for the Respondent.

[Order per : Smt. S. Duggal, Member (J)]. - The matter in controversy in this appeal is as to whether the goods imported by the appellants described as Honing Stones were liable to Customs duty under Item 68.01/16(1) of the Indian Customs Tariff. The petitioners had imported a consignment of the aforesaid goods by Bill of Entry dated 8-8-1979 and on assessment being made for purpose of excise duty, under Tariff Entry 68.01/16(1), the duty was paid but subsequently the party filed a refund claim contending that the goods were classifiable under sub-clause 2 of this Entry and not sub-clause 1, as determined by the Customs authorities.

2.However, the Assistant Collector of Customs, Bombay rejected this contention holding that Tariff Entry 68.01/16(2) of the Customs Tariff excluded from within its scope, articles known as Honing Stones and that accordingly, the goods were correctly classified under sub-clause 1 of the same Entry, which dealt with generally all varieties of articles of natural or artificial stones of given description, “not elsewhere specified”. He further held that sub-clause 2 of this Entry dealt with specified items, such as grinding stones, grinding wheels and the like and positively excluded Honing Stones, from among the category of goods falling under said sub-heading. As a consequence to this, the refund claim was rejected.

3. The Appellate Collector of Customs, Bombay, on appeal being taken up before him, by his order dated 18/22-12-1979, dismissed the same after giving personal hearing to the appellants, confirming the order passed by the Assistant Collector.

4. Feeling aggrieved by this rejection of their appeal, the party went in revision before the Central Government and it is this revision petition, which has been transferred to the Tribunal by virtue of provisions of Section 131B of the Customs Act, to be treated as an appeal, and being disposed of as such.

5. Today, on the date of hearing, Shri R.K. Majra, Advocate appeared for the appellant whereas the Department was represented by Shri Kunnikrishnan, Shri Majra vehemently assailed the finding of the Assistant Collector and also criticised the order of the Appellate Collector as smacking of non-application of mind inasmuch as he gave no reasoning and simply adopted the order of the Assistant Collector, and further contended that only hand-operated Honing Stones were excluded from the ambit of Entry 68.01/16(2) and that the subject goods being machine-operated Honing Stones, have been erroneously held to have not been covered by this clause and thus the lower authorities erred in holding that they would fall under the general description, contemplated by sub-clause 1. He further made reference to the BTN Tariff contending that there was a clear distinction in the Explanatory Notes appended to the CCCN between hand-operated and machine-operated Honing Stones and that the same should be borne in mind while considering Entry under the Customs Tariff.

6. In reply, Shri Kunnikrishnan, Departmental Representative said that the wording of the Entry made it unambiguously clear that all types of Honing Stones were excluded and that the contention of the appellants was misconceived that the word “Honing” has to be qualified by “hand”, which appears before “polishing stone”, after the exclusion entry. He also brought to our notice a Bench decision of this Tribunal involving identical point in the case of Precision Bearings India Ltd., Bomaby v. Collector of Customs, Bombay (1983 ELT 362A) decided on 21-2-1982. The learned Counsel for the appellant also seemed to be aware of this ruling but urged that since the said appeal had been decided in the absence of any representative of the appellants, he would still like to reiterate that the term “Hones” enumerated the excluding article would cover only, any hand hones and not every type of hones.

7. We have gone through the previous ruling and we find that all these contentions, including wording of the BTN, set forth by the learned Counsel were in focus before the Bench while deciding this issue, and in a well-considered judgment it was held that :

“Since Explanatory Notes to the BTN have not been incorporated into the Customs Tariff, the matter would have to be decided on the basis of the plain interpretation of the Tariff itself. The plain interpretation of the expression ”but excluding hand polishing stones, whet stones, oil stones and hones" is that the word “hand” qualifies only polishing stones. Accordingly, we hold that the Department is right in saying that both machine-operated as well as hand-operated hones are excluded from sub-heading 2 and their assessment under sub-heading 1 is, therefore, correct."

8. Finding ourselves in full agreement with the view already taken by the Tribunal, we do not find any merit in this appeal and the same is rejected.

Equivalent 1983 (13) ELT 1034 (C.E.G.A.T.)