1997(12)LCX0277

IN THE CEGAT, COURT NO. II, NEW DELHI

S/Shri G.R. Sharma, Member (T) and A.C.C. Unni, Member (J)

TATA ENGG. & LOCOMOTIVE CO. LTD.

Versus

COLLECTOR OF CUSTOMS, CALCUTTA

Final Order No. C/2885/97-B2, dated 5-12-1997 in Appeal No. C/5/91-B2 with C/CO/105/91-B

Advocated By : Shri T. Vishwanathan, Advocate, for the Appellants.

Mrs. R. Pant, SDR, for the Respondent.

[Order per : A.C.C. Unni, Member (J)]. - Appellants in this case have challenged the Order-in-Appeal passed by the Collector of Customs (Appeals), Calcutta dated 22-8-1990 denying their refund claim of Rs. 40,403.12.

2. M/s. TELCO, Appellants, imported 26 pieces of safety clamps as Excavator spares. The clamps according to the Appellants, are specially designed parts of lifting equipment by E.O.T. cranes. There was dispute between the appellants and the Assistant Collector on the correct classification of the goods as well as the rate of duty. Appellants had classified the goods under Chapter Heading 8439.49 in the Bill of Entry whereas the Appraiser reclassified it under Heading 7326.90 and assessed duty accordingly. Appellants paid the duty under protest and claimed refund of the excess duty paid. The Assistant Collector who adjudicated the matter rejected the refund claim on the ground that the appellants had not produced sufficient evidence to substantiate their claim. Collector (Appeals) rejected their appeal holding that the description and details shown in the catalogue tended to suggest that the goods were alloy steel hooks used for lifting or lightly fixing some articles for removing them from place to place and not as recognisable parts of excavator or to be used exclusively by excavator.

3. We have heard Shri T. Vishwanathan, Advocate who appeared for the appellants and Smt. R. Pant, SDR, who represented the Respondent Collector.

4. It was contended on behalf of the appellants that the clamps imported by them were of different models with various sizes and were parts solely designed for E.O.T. cranes. In support they submitted technical write up/technical literature showing that the clamps had also safety arrangements with locking provisions which was a specified requirement for lifting and turning over of steel plates in particular. They also drew attention to Explanatory Notes to HCCCN which clearly mentioned the items as classifiable as specially designed parts of the lifting equipment and not for general application. It was their contention that having regard to these facts, declaring their goods as articles of steel was not correct. They also contested the view taken by the Collector (Appeals) that the clamps were not specially designed/recognisable parts of Excavator. On the other hand, they contended that they were specially designed parts of E.O.T. cranes.

5. The ld. SDR referring to the Cross objection filed by the Department pointed out that the Bill of Entry had described the goods as “Eagle Clamps” and as “Specially designed parts for sole use in Excavator”. However, there was no such indication either in the Invoice or in the literature submitted by the Appellants. She drew attention to the catalogue submitted by the Appellants which read as follows :-

“Clamps with safety lock which is never released even if the rope is slackened. Though the clamp is most widely employed, it is ideal for lifting and turning over the steel plates in particular. These plate lifting hooks are compact, light in weight and are made of special heat treated alloy steel.”

Ld. SDR submitted that the description in the technical literature clearly showed that the clamps were alloy steel hooks used for lifting or lightly fixing some articles from one place to another. The claim of the appellant company that the goods have been designed specially for use in excavators was incorrect and misleading. She also submitted that the assessment had made in conformity with the explanatory notes appearing in page 1032 of CCCN.

6. We have carefully considered the submissions made on behalf of both the parties. On going through the copy of the technical catalogue of the goods at pages 35 to 37 of the Appeal filed by TELCO we note that there is nothing in the said catalogue to indicate that the Eagle clamps imported by the appellants were “specially designed parts for sole use in Excavators” as claimed by them in the Bill of Entry. We have also gone through the definitions of `clamp’ and `grab’ in the Penguin English Dictionary to which our attention was drawn by the ld. Advocate. These also do not lend any support to the appellant’s claim that the clamps imported by them were specially designed parts for sole use in Excavators. In the premises, we are unable to find any merit in the Appeal filed by M/s. TELCO. The same is as a result dismissed and the impugned order upheld. The Cross objection filed by the Department is also accordingly disposed of in the above terms.

Equivalent 1998 (99) ELT 478 (Tribunal)