2000(09)LCX0037

IN THE CEGAT, EAST ZONAL BENCH, CALCUTTA

Smt. Archana Wadhwa, Member (J) and Dr. S.N. Busi, Member (T)

COMMISSIONER OF CUSTOMS, CALCUTTA

Versus

KITPLY INDUSTRIES LTD.

Order No. A-1588/CAL/2000, dated 21-9-2000 in Appeal No. CR-126/99 & CO No. CO-13/99

Advocated By :   Shri V.K. Chaturvedi, SDR, for the Appellant.

S/Shri R.K. Chowdhury and B.N. Pal, Advocates, for the Respondent.

[Order per : Smt. Archana Wadhwa, Member (J)]. - The short point involved in the present appeal of the Revenue is as to whether furniture, hardwares and fittings (cabinet knob) imported by the respondents would be classifiable under Heading 8302.11 importable under OGL or the same would be properly classifiable under Heading 8302.42, importation of which is permissible only against specific licence. Whereas the respondents have contended that the goods imported by them could be used as fittings for windows, sliding doors, wardrobes, cabinet etc. and the pre-fixation of the word 'cabinet' in the description of the goods did not restrict the use of the goods to cabinet only, but the word 'cabinet' was used for the convenience of cataloging. They have also referred to the manufacturers' fax message dated 22-5-98 for corroborating their above version. After hearing both the sides we find that the Commissioner of Customs (Appeals) has allowed the appeal filed by the respondents by observing as under :-

I find from the ITS (HS) classification of Export and Import Items, '97 - '02, that “Fittings for doors and windows”, being classifiable under exim code 83024101, were freely importable under the Exim Policy, '97-'02 whereas, “other fittings/mountings etc.” suitable furniture were classifiable under exim code 83024200 and were restricted for import requiring specific import licence. There is also no definition/specification in the Customs Tariff Act, 1975, Exim Policy, '97-'02, or in the ITC(HS) classification of Export and Import Item, '97-'02, of the fittings for doors and windows or for the fittings for furniture.

Except for the bland statement, "on examination of the aforesaid goods, it was found that the said goods are restricted in terms of ITC(HS) classification of Export and Import licence", no specific reason was given in the impugned order as to why the goods could not be considered as fittings for doors/sliding doors, windows as was contended by the appellant. Merely because the goods have been described as “Cabinet Knobs”, classification of the same cannot be considered under one specific entry in total disregard to the explanations/submissions made by the importer. Classification of such contentious goods are to be made after ascertaining its actual use from trade.

The impugned goods were cleared for home consumption and therefore the same are not available with the lower authority. I also find from the impugned order that no representative sample(s) were drawn from the consignment imported. Remanding the case to ascertain the use of the imported goods from market enquiry will therefore, to my mind, be a exercise in futility.

Moreover, I find that even after issuance of the impugned order, importation of similar/identical goods by the appellant from the same manufacturer-supplier were allowed clearance without coverage of any ITC licence, by the Customs authority at Air Cargo Complex, vide bill of entry No. 497 dated 9-10-98.

2. After hearing both the sides, we do not find any infirmity in the above order of the Commissioner (Appeals). The Revenue has not placed anything on record to show that the knobs imported by the respondents were not meant for doors and windows. It is admitted legal position that fittings for doors and windows could be freely imported. As such we do not find any reasons for interfering in the impugned order of the Commissioner (Appeals). Appeal filed by the Revenue is accordingly rejected.

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Equivalent 2001 (128) ELT 534 (Tri. - Cal.)

Equivalent 2001 (042) RLT 0763