1995(04)LCX0126

IN THE CEGAT, SPECIAL BENCH B2, NEW DELHI

S/Shri S. Kalyanam, Vice President, P.K. Kapoor, Member (T) and Lajja Ram, Member (T)

HINDUSTAN ALUMINIUM CORPORATION LTD.

Versus

COLLECTOR OF CUSTOMS, CALCUTTA

Final Order No. C/147/95-B2, dated 6-4-1995 in Appeal No. C/744/85-B2

Advocated By : Shri K.K. Kapoor, Consultant, for the Appellant.

Shri K.K. Jha, SDR, for the Respondent.

[Order per : S. Kalyanam, Vice President]. - This appeal is directed against the order of the Collector of Customs (Appeals), Calcutta dated 22-1-1985 confirming the order of the Assistant Collector of Customs, Appraising Refund Section, Calcutta dated 3-9-1983. The learned Consultant Shri K.K. Kapoor for the appellant submitted that refund was made by the appellant on the basis of classifying the goods namely “template” under Heading 90.24 (1) of the Customs Tariff Act, 1975. Shri Kapoor submitted that even the wording of the Tariff Entry 90.24, the goods in question `templates’ would not come within the mischief of that particular entry. It would be open to the appellant to their case on the basis of reclassification of the goods under 90.16 of the Customs Tariff Act and seek consequential relief.

2.  We have gone through the record and considered the submission and examined the goods before us produced by the learned Consultant. After inspection of the sample goods produced by the appellant, to a specific query from the Bench to the learned consultant, as to whether the wording of the tariff entry under Heading 24.75 would take within its embrace the goods in question, Shri Kapoor fairly conceded that that particular classification may not be applicable. Tariff Heading 90.24 reads as under :

“Instruments and apparatus for measuring, checking or automatically controlling the flow, depth, pressure or other variables of liquids or gases or for automatically controlling temperature (for example, pressure gauges, thermostats, level gauges, flow meters, heat meters automatic oven-draught regulators), not being articles falling within Heading No. 90.14 :

(1) Not elsewhere specified

(2) Thermostats and humidistats"

It would thus be seen that the `templates’ in question are admittedly not used either for measuring, checking or controlling the flow, depth or pressure of liquids or gases nor for controlling temperature. Therefore, on plain reading, the templates in question would not be covered by the aforesaid Tariff classification. Therefore, the refund claim made by the appellant on the basis of aforesaid Tariff classification for the goods in question is not sustainable. We are not able to accede to the alternative plea of the learned Consultant for remanding the matter to readjudicate the issue as to whether the goods can be classified under 90.16 because that was not the ground on the basis of which admittedly the refund claim was filed before the authorities. Therefore, under law, it is not open to the appellant to put forth a new case seeking re-classification of the goods under Tariff Heading 90.16 of the Customs Tariff Act seeking consequential refund. Therefore, for the reasons stated above and adopting the reasons in the impugned order, we hold that the rejection of the appellant’s refund claim is sustainable in the facts of the case and in law. In this view, we sustain the impugned order appealed against and reject the appeal.

Equivalent 1995 (79) ELT 174 (Tribunal)