1988(02)LCX0119

IN THE CEGAT, SPECIAL BENCH `B2’, NEW DELHI

S/Shri K. Prakash Anand, Member (T) and G.P. Agarwal, Member (J)

ESCORTS LIMITED

Versus

COLLECTOR OF CUSTOMS, BOMBAY

Order No. 51/88-B2, dated 22-2-1988 in Appeal No. 89/83-B2

Cases Quoted

Kores (India) Limited v. State of U.P. — 1977 Tax Law Reporter 1601 — Referred                 [Para 3]

Collector v. Warners Hindustan Ltd. — 1986(06)LCX0020 Eq 1986 (026) ELT 0367 (Tribunal) — Relied on          [Paras 3, 4]

Advocated By : Shri J. Banerjee, Advocate, for the Appellant.

Shri J. Gopinath, SDR, for the Respondent.

[Order per : G.P. Agarwal, Member (J)]. - The only short question which arises for our consideration in this appeal is as to whether the imported goods Chrome Nickel Steel Tubes (Incoloy 800) conform to the specification, composition and description of “Stainless Steel”, so as to be assessable duty under Item No. 73.15(2) of the First Schedule to the Customs Tariff Act, 1975 as held by the authorities below or they are assessable to duty under Item No. 73.17/19 (1) as contended by the appellants.

2. Factual backdrop : The appellants imported two cases of Chrome Nickel Steel Tubes (Welded) named Incoloy-800 and presented the B/E for assessment on 21-4-1982. The same was assessed on 23-4-1982 after charging the goods to duty at the rate of 300% + 30% under Tariff Item 73.15(2), CTA, 1975. It appears that subsequent to the clearance the appellants vide their letter dated 8-6-1982 claimed the refund of duty urging that the rate of duty of 300% would apply to “stainless steel” tubes and not to Incoloy-800 tubes. They pointed out that Incoloy-800 tubes are “nickel based alloy” and not steel item since ferrous content is less than 50%. However, the assessing authority did not agree with the said contention of the appellants and held that the goods imported contain 19.90% chromium and are covered by the definition stainless steel in the I.S.I. as well as in the I.T.C. Policy Book 1981-82 and therefore goods imported would fall under category of “stainless steel” and would be assessable under Heading 73.15(2) of the CTA, 1975 and by virtue of recent Customs Tariff (Amendment) Act, 1982 duty at 300% is leviable on stainless steel tubes under Heading 73.17/19(2). Against this order the appellants went in appeal before the Collector of Customs (Appeals), Bombay but without success. Hence the present appeal.

3. Shri J. Banerjee, learned Counsel for the appellants contended that both the authorities below went wrong in treating the goods imported namely Incoloy-800 as “stainless steel”. In the process he submitted that “stainless steel” has not been defined anywhere in the Customs Tariff and hence one has to fall back on how such goods as “Incoloy” tubes are understood by those who deal with the same in the market, as held by the Supreme Court in the case of Kores (India) Limited v. State of U.P., 1977 Tax Law Reporter 1601. In reply Shri J. Gopinath, learned SDR with his usual fairness submitted that in the case of Collector of Customs, Bombay v. Warners Hindustan Ltd. - 1986 (026) ELT 367, this Tribunal after considering the entire case law on the point had concluded that “Incoloy-800” are not “Stainless Steel” falling under Item No. 73.15(2) of the First Schedule to the Customs Tariff Act, 1975 and therefore they fall under Item No. 73.15(1) of the schedule “as goods not elsewhere specified” but hastened to add that he adopts the same arguments which were raised by him in that case and has nothing to add further.

4. We have ourself examined the facts of the case and find that the issue involved in the instant appeal is identical to the issue involved in the case of Collector of Customs v. Warners Hindustan Ltd., supra. In view of the said decision we held that the goods imported in the instant case namely Incoloy-800 are not of “stainless steel” falling under Item No. 73.15(2) of the First Schedule to the Customs Tariff Act, 1975 but the goods are assessable to duty “as goods not elsewhere specified”. Consequently by virtue of recent Customs Tariff (Amendment) Act, 1982 duty at the rate of 60% is leviable on the imported tubes (Incoloy-800) under Heading 73.17/19(1).

5. In the result the appeal is allowed and the impugned orders passed by both the authorities below are set aside with consequential relief.

Equivalent 1999 (113) ELT 424 (Tribunal)