2009(06)LCX0134
IN THE CESTAT, WEST ZONAL BENCH, AHMEDABAD
S/Shri B.S.V. Murthy, Member (T) and Ashok Jindal, Member (J)
Commissioner of Customs, Ahmedabad
Versus
Chandan Exports
Stay Order No. S/896/2009-WZB/AHD, dated 12-6-2009 in Application No. C/S/259/2009 in Appeal No. C/39/2009
Cases Quoted -
Commissioner v. Allufit (I) Pvt. Ltd. - 2008(03)LCX0122 Eq 2008 (227) ELT 0085 (Tribunal) - Referred [Para 3]
Advocated By -
Shri S.K. Mall, SDR, for the Appellant
Shri Prashant Patankar, Consultant, for the Respondent.
[Order per: B.S.V. Murthy, Member (T)]. -
The Revenue has filed stay petition seeking stay of operation of the impugned order in which the Commissioner (Appeals) has held that Aluminium Plates (Composite and both side coated) of various thickness imported by the appellants are required to be classified under CTH 7606 11 90. He has also ordered that value declared by the importer in the Bills of Entry be accepted.
2. The learned DR appearing on behalf of the Revenue submits that the Commissioner (Appeals) in his order has not considered all the factors for correct classification of the product in question and, further, he also submits that the matter has the recurring effect and, therefore, stay may be granted.
3. The learned Consultant on behalf of the respondent submits that Commissioner (Appeals) has considered the issue in detail and as passed a well reasoned order. Further he also submits that in the case of CC, Chennai v. Allufit (I) Pvt. Ltd. reported in 2008(03)LCX0122 Eq 2008 (227) ELT 0085 (Tri-Chennai), the Tribunal has held that the similar product is required to be classified under CTH 7606 and has refused to grant stay.
4. We have considered the submissions made by both sides. The observation of the Commissioner (Appeals) with regard to classification are reproduced as under:-
"A perusal of Tariff heading 76.10 shows that it covers Aluminium structures and parts thereof. The entries in the bracketed words, in this Tariff heading refer only to structures and part of the structures. Even the aluminium plates, rods, profiles, tubes and the like had been referred to in this Tariff heading as the ones prepared for use in structures. The entry in subheading 7610 90 30 refers to "aluminium plates, rods, profiles, tubes and the like, prepared for use in structure". By not classifying the impugned goods under CTH 7610 90 30, the Department agrees that these plates were not prepared for use in structure. Once these were not prepared for use in structure these 'parts' which are nothing but composite aluminium plates goes out of the purview of CTH 76.10, but only those which are 'prepared for use in structures'. Explanatory Note to HSN for 76.10 denotes that the provisions of the Explanatory Note to heading 73.08 apply mutatis mutandis, to this heading. Explanatory Notes to Heading 73.08 inter alia, states as under:-
"The heading also covers parts such as flat-rolled products, 'wide flats' including so called universal plates, strip rods, angles, shapes, sections and tubes which have been prepared (e.g. Drilled, bent or notched) for use in structures."
Although this explanation in CTH 73.08 may not have a direct relevance with the description of the imported goods in this case, applying this explanation to CTH 76.10 would give sufficient indication as to the meaning of expression and term 'prepared' used in Chapter Heading 76.10 in the present case, it has not been alleged or established that at the time of filing of Bill of Entry, the imported aluminium plates (composite both side coated) were prepared in the manner above so as to include them either as structures or as parts of structures covered under Chapter) Heading 76.10 of the Customs Tariff. On the other hand, Chapter Heading 76.06 covers 'Aluminum plates, sheets and strip of a thickness exceeding 0.2 mm'. The imported goods have been declared by the appellant as Aluminium Plates and held by the adjudicating authority in the impugned order to be aluminium plates of thickness of 3 mm and above. As already found above, the imported aluminium composite plates were also not 'prepared' for use in aluminium structures. Having ruled out the classification under Chapter Heading No. 76.10 hold that the goods in dispute in the present appeal fall for classification under Heading 760711 90 of the Customs Tariff Act."
5. The contention of the Revenue is that the Commissioner (Appeals) in his order has mainly emphasized on the word prepared' and has been taken it to mean only drilled, bent or notched. It is the Revenue's contention that the word 'prepared' has been illustrated by giving examples and it is not exhaustive list, which restricts aluminium plates/panels from classification under CH 76.10. From the order of the Tribunal produced by the learned Advocate for the respondent, we find that a similar issue was before the Tribunal in Chennai also. The Commissioner (Appeals) has also taken the similar view. We also find that the Commissioner (Appeals) has given proper reasoning for his conclusion and at this stage of hearing, for the purpose of stay, it would not be possible to go into all the details required for classification. Prima facie, the Revenue has failed to make out a case for grant of stay and in view of the fact that the Commissioner (Appeals) has considered the matter in detail and has passed a well reasoned order, we do not find it appropriate to grant stay against the impugned order at this stage.
6. Accordingly, the stay petition filed by the Revenue is rejected.
(Pronounced in Court)
Equivalent 2009 (243) ELT 0312 (Tri. - Ahmd.)