2019 (7) TMI 12 - CESTAT BANGALORE

Classification of imported goods - Aluminium Profiles - whether classified under heading CTSH 7604 (subjected to duty @ 5%) or under CTSH 7610 (liable to duty @ 10%)? - extended period of limitation - HELD THAT:- While CTH 7604 1031 covers Aluminium profiles as claimed by the appellants Heading No.7610 9030 covers Aluminium plates, rods, profiles, tubes and the like prepared for use in structures. Explanatory Notes to Heading 7610 under HSN referred to Note to Heading 73.08, as per which the Heading also covers parts such as flat rolled products, wide flats including so called universal plates, strips, rods, angles, shapes, sections and tubes, which have been prepared (Eg. Drilled, bent or notched).

The suppliers of the appellants do not describe the impugned goods to be profiles; the importers do not place an order describing the goods to be profiles and the customers of the importers also do not describe them to be profiles in general. Going by the product catalogues, technical write-up, it is seen that each profile is made specifically for certain purpose and designed to it with specific size of glasses or doors. It could be that they are required to cut, drilled or punched on site to give them a finished touch or to adjust to the condition. However, for this very reason, they do not seize to be already “prepared for use” - the impugned goods are assigned a specific product code which also appear on the designs and BOQs; and they are described as glazing frame, doorjamb, snap-in, flush panel and wielding snap-in pocket, etc.

Nowhere the goods are described as Aluminium profiles per se. it is seen that the impugned goods are identifiable as items prepared for use in structure as the supplier himself identifies the same with code numbers corresponding to a particular partition system and supplies them as such. Therefore, the only conclusion that can be drawn is that the impugned goods are prepared for use in structures which are known to the foreign supplier, importer and their customers.

The end-use i.e., the articles “prepared for use” being specially finding a mention in the Tariff are required to be classified accordingly - the goods are classifiable under CTH 7610 9030 as contended by the Revenue.

Extended period of limitation - HELD THAT:- Having issued a show-cause notice in 2010 on the same proposition, department cannot plead that there is suppression of fact, etc., necessitating invocation of extended period - the extended period cannot be invoked.

Penalties set aside.

The demand is restricted to the normal period - penalty set aside - matter remanded to the original authority with a direction to quantify the duty for normal period giving allowance to the Bills of Entry wherein duty has been paid correctly - appeal allowed by way of remand.