Hindco Rotatron Pvt Ltd. vs Collector of Customs, Calcutta>1992(12)LCX0054

1992(12)LCX0054

BEFORE THE CEGAT, SPECIAL BENCH ‘D’, NEW DELHI

S/Shri K.S. Venkataramani, Member (T) and S.L. Peeran, Member (J)

HINDCO ROTATRON PVT LTD.

Versus

COLLECTOR OF CUSTOMS, CALCUTTA

Final Order No. C/533/92-D, dated 16-12-1992 in Appeal No. C/1404/89-D

Advocated By : Shri T.P.S. Kang, Advocate, for the Appellants.

Shri J.N. Nair, JDR, for the Respondents.

[Order per: K.S. Venkataramani, Member (T)]. - This appeal is directed against the order dated 23-1-1989 passed by the Collector of Customs and Central Excise (Appeals), Calcutta. The appellants herein imported a consignment of goods described as Artificial Fur for which a Bill of Entry was filed on 24-11-1986. They claimed classification of the goods in the Bill of Entry under 4304.00 Customs Tariff Act, 1975 which covers artificial fur and articles thereof and under heading 4301.00 under CETA, 1985 which covers manufacture of furskin and artificial fur. The Customs House accepted the import licence produced for artificial fur. The goods were also tested by the Dy. Chief Chemist in the Customs House who reported that the sample is the form of a cut piece of light yellow coloured pile type of fabric having furskin like appearance on one side and that it is composed of loose knitted fabric with fibres of short length raised on one side, the other side being plain and that the base fabric is made of man-made filament yarn polyester and the short length raised fibre is made of man-made staple fibres Acrylic type. The goods were thereafter assessed by the Custom House under sub-heading 4304.09 CTA, 1975 and under sub-heading 6001.00 CET. This heading covers knitted or crocheted fabrics all sorts. The appellants herein requested the Assistant Collector for a formal order about this classification and “the Assistant Collector issued such an order dated 20-7-1988. In this order, the Assistant Collector held the goods classifiable under Heading 6001.29. This order of the Assistant Collector was challenged in appeal. The Collector (Appeals) by the impugned order observed that the appellants’ arguments before him were not very clear because even if for the purposes of CVD, the goods are classifiable under sub-heading 43.04, he has to pay central excise duty at the same rate of 12%. The Collector also observed that the Assistant Collector had wrongly held the goods to be classifiable under sub-heading 6001 because in the Bill of Entry, the assessment was under sub-heading 4304. It was also found by the Collector (Appeals) that the appellants had not cited what is amount of refund of duty due to them nor have they filed a refund claim. The Collector held that the correct classification of the goods is under sub-heading 4304. But since he found that the appellants had not clarified how the refund is due to them, he rejected the appeal.

2. Shri T.P.S. Kang, the learned Counsel appearing for the appellants submitted that the Collector (Appeals) having held that the goods will fall under sub-heading 4304 for classification should have issued an order for the consequential refund due to the appellants which will according to the appellants be due to them on the classification being adopted under Chapter 43 for the purposes of customs duty as well as additional duty of customs. The learned Counsel further urged that the goods cannot be classified under Heading 60.01 because assessment of the goods is based on the finding to be artificial fur which is specifically covered by sub-heading 4304.00 CTA and if this is so, it cannot be differently classified under Chapter 60 for purposes of additional duty of customs. The classification of the goods under Chapter 43 based on the test result is further indicated because of Chapter Note 5 to Chapter 43 of Customs Tariff Act, 1975. The learned Departmental Representative Shri J.N. Nair submitted that the position regarding the classification of the goods under the Customs Tariff Act, 1975 and CETA, 1985 does not emerge very clearly from the order of the lower authority and in the absence of a copy of the relevant Bill of Entry. However, it would appear from the Collector (Appeals) order that even after accepting classification of the goods for CVD under Chapter 43 there may not be any differential duty actually resulting in a refund being due to the appellant as the quantum of duty under both Chapters would work out to be the same and re-classification may not necessarily result in any duty relief.

3. On a careful consideration of the submissions made by both the parties herein we found that the Collector (Appeals) has given a clear finding that the goods are classifiable under Chapter 43 and as such the goods should be classified under that Chapter for the purposes of basic custom duty as well as the additional duty of Customs (CVD) which in effect means that the classification of the goods as originally claimed by the appellants in the Bill of Entry under sub-heading 4304.00 CTA and sub-heading 4301.00 CETA has been upheld. The question would, therefore, be only whether due to this re-classification, the appellants would be entitled to any refund. They seemed to be believe that there will be an amount of differential duty which may be due as refund. It is noted that the prayer in the appeal before us is also as follows :-

“That the order so passed by the learned Collector of Customs and Excise (Appeals) be modified to the extent that the refund so claimed may be al lowed.

That the order of the lower authorities be rectified so as to make it that the appeal may not be rejected but the refund so due on the basis of the correct classification be granted to the appellant.”

In these circumstances, the question is only one of quantification of refund if any which may be due to the appellants consequent upon the finding that the goods are classifiable under Chapter 43 of CTA and CETA. There is, we find an ambiguity in this regard. It is not clear whether at any time this quantification has been attempted. Therefore, in the interest of justice, it will be appropriate to afford the appellants an opportunity to establish before the Assistant Collector that any consequential refund is due at all and for this purposes, we remand the matter to the jurisdictional Assistant Collector of the Calcutta Customs House for affording an opportunity to the appellants to establish their claim as above. He may also give them an opportunity of being heard in the matter. The appeal is disposed of in the above terms.

Equivalent 1994 (69) ELT 33 (Tribunal)