1992(03)LCX0014
BEFORE THE CEGAT, SPECIAL BENCH ’C’, NEW DELHI
Shri G.P. Agarwal, Member (J), Ms. Jyoti Balasundaram, Member (J) and Shri P.K. Kapoor, Member (T)
J.K. SYNTHETICS LTD.
Versus
COLLECTOR OF CUSTOMS
Order No. 75/92-C, dated 6-3-1992 in C/Appeal No. 2917/90-C
Cases Quoted
COLLECTOR v. ENFIELD INDIA LTD. - 1991 (051) ELT 172 .[PARA 2]
GOPAL DASS JAGAT RAM PVT. LTD. v. COLLECTOR - 1983(05)LCX0022 Eq 1983 (013) ELT 1106 [PARA 2]
COLLECTOR v. PHOTOGRAVURES (INDIA) PVT. LTD.
- 1987(04)LCX0064 Eq 1987 (029) ELT 0647 (TRIBUNAL) .[PARA6]
Advocated By: Ms. Amrita Mitra, Advocate, for the Appellants.
Shri K.K. Bhatia, Jt. C.D.R., for the Respondent.
[Order per: P.K. Kapoor, Member (T)]. - The appellants filed a Bill of Entry Cash No. 8309, dated 27-1-1989 for the clearance of goods declared to be “Consumables for Polyester Staple Fibre Plant Silicone Spray Toshiba TGS-6007". The assessment of the goods was claimed under Heading No. 3403.99 read with Notification No. 136/86 as amended by Notification No. 44/86. The goods were assessed to duty under Heading No. 3403.99 at 150% + Rs. 15/- per kg. + 45% + C.V.D. Rs. 3.500/- P.M.T. without extending the benefit of Notification No. 136/86 (as amended). The appellants filed a refund claim seeking re-assessment of the goods under Heading No. 3402.19 read with Notification No. 136/86 (as amended) @ 60% + 40% + C.V.D. 12%. The Assistant Collector rejected the refund claim on the grounds that Heading No. 3402.19 covered Surface Active Agents, whereas the goods on test had been found as “Aerosol preparation containing Polyorgano Silicone Compound (Silicone oil) in Volatile Organic Liquid etc.” The appellants filed an appeal against the order passed by the Assistant Collector and contended that they had erroneously mentioned the Heading 3402.19 in their refund claim. They claimed that the goods being a “lubricating preparation” it was assessable under Heading 3403.99 read with Notification No. 136/86 (as amended). They also pointed out that in the Bill of Entry they had declared the goods as classifiable under Heading 3403.99 and the Department had assessed their subsequent imports of the same goods under Heading 3403.99. However, the appeal was rejected on the grounds that reassessment had been claimed under Heading 3402.19 and the appellants had failed to establish that the goods in question were “Organic Surface Active Agent”.
2. On behalf of the appellants the learned Advocate Ms. Amrita Mitra appeared before us. She stated that in the Bill of Entry the appellants had declared the goods as assessable under Heading 3403.19 read with Notification No. 136/86 (as amended). She added that the goods were classifiable under Heading 3403.19 since on test they were found to be ‘lubricating preparation’. She contended that while filing the refund claim the appellants had due to a typographical error mentioned the Heading 3402.19. She contended that citing of incorrect classification could not act as a bar to the correct classification of the goods. In support of her contention she cited the following case law :-
(i) 1991 (051) ELT 172 - C.C. v. Enfield India Ltd.
(ii) 1983(05)LCX0022 Eq 1983 (013) ELT 1106 - M/s. Gopal Dass Jagat Ram Pvt. Ltd. v. C.C.E., Chandigarh.
3. On behalf of the Revenue the learned Jt. C.D.R. Shri K.K. Bhatia contended that from the orders passed by the lower authorities it is evident that the appellants had claimed reassessment of the imported goods under Heading 3402.19 read with Notification No. 136/86 (as amended). He added that the imported goods not being “Surface Active Agent” they were not classifiable under Heading 3402.19. He pleaded for rejection of the appeal on the grounds that the appellants’ claim for classification of the goods under Heading 3403.99 before the Collector (Appeals) and again before the Tribunal was barred by limitation.
4. We have examined the records of the case and considered the submissions made on behalf of both sides. The short point that arises for consideration in this case is whether the claim for classification under a heading different from the one under which refund was claimed, can be raised at any later stage.
5. In the Bill of Entry the appellants had declared the imported goods as “Consumables for Polyester Staple Fibre Plant Silicone Spray Toshiba TGS-6007" classifiable under Heading 3403.99 read with Notification No. 136/86. The imported Silicone oil spray was meant for use as a mould release preparation in the Filament Yarn plant. The goods were assessed under Heading 3403.99 but the benefit of Notification No. 136/86 (as amended) was denied. The refund claim filed by the appellants was rejected on the grounds that reassessment of the goods had been claimed under Heading 3402.19 which covers ‘Surface Active Agents” whereas on test the goods had been found to be a “lubricating preparation” classifiable under Heading 34.03.
6. On test the goods were certified as “lubricating preparation”. It follows that they were correctly classifiable under Heading 3403.99 and they were also eligible for the concessional assessment under Notification No. 136/86 (as amended). The appellants’ claim that reassessment of the goods had been sought under Heading 3403.99 but due to a typographical error they had mentioned the Heading 3402.19 in their application for refund, was rejected. The Collector (Appeals) held that the claim for reassessment under Heading 3403.99 not having been made before the original authority, it could not be raised at the appeal stage. In this regard we find that in the case of Collector of Customs v. Photogravures (India) Pvt. Ltd. reported in 1987 (029) ELT 647 the Tribunal has held that classification of goods under a different heading of the tariff is purely a question of law and can be raised at any stage. Paragraph 6 of the said decision is reproduced below:
“6. We have heard both the sides. There is no dispute on the facts of the case and the goods imported by the respondents and we further observe that no further evidence on facts would be required. In order to appreciate the arguments of the appellant which is now sought to be raised, we decide to allow this plea being taken up because we feel that any ground based purely on point of law can be urged at any stage. Our views are further fortified by the earlier judgments of the Tribunal in the case of Khader Knitting Company v. C.C.E., Madras, reported in 1984 (015) ELT 176 and in the case of Cynamid India Ltd. v. C.C.E. Bombay, reported in 1984 (015) ELT 186 where in the latter case the Tribunal had held that -
“Apart from this, he argued that the fresh ground should not be allowed to be taken at this stage, since it had not been taken before the lower authorities or in the original appeal to the Tribunal. The Bench considered that, since the appeal involved the question of correct classification of the goods, on which a ruling would have to be given, it would not be in the interest of justice or conduce to a proper disposal if the appellants are prevented from raising a new ground. The Bench accordingly indicated that this ground would be allowed to be raised.”
In view of the above discussion, we overrule the objection of Shri J.M. Patel, the learned Advocate, for the respondent and hold that for the proper disposal of the appeal there has to be a correct classification and this plea, which is purely a legal plea, should be permitted at the appellate stage."
7. On the ratio of the Tribunal’s decision quoted above we are of the view that the plea raised by the appellants for re-classification of the goods under Heading 3403.99 and their assessment at the concessional rate of duty in terms of Notification No. 136/86 (as amended) can be considered by us.
8. It is seen that in the report dated 13-7-1989 at page 18 of the paper book, the Chemical Examiner has certified that ‘Mould Release Preparation’ in question being a lubricating preparation. It has therefore to be held that the goods in question were classifiable under Heading 34.03 of the Tariff. The only other question that remains to be examined is whether the goods were eligible for concessional assessment in terms of Notification No. 136/86 (as amended). It is seen that Serial No. 76 of the table annexed to the said Notification listing the goods entitled to concessional assessment reads as under :-
“Artificial waxes, prepared waxes, lubricating preparations and preparations of a kind known as ‘dental wax’ or ‘dental impression compounds’.”
Since the Chemical Examiner has certified that the goods in question fell in the category of ‘lubricating preparation’, they have to be held as eligible for the benefit of Notification No. 136/86.
9. We, therefore, set aside the impugned order and allow the appeal with consequential relief to the appellants.
Equivalent 1992 (62) ELT 41 (Tribunal)