TMI Blog2012 (10) TMI 422X X X X Extracts X X X X X X X X Extracts X X X X ..... the Assessee. None, for the Department. [Order]. This Revision Application has been filed by the Applicant M/s. Designco, Moradabad against Order-in-Appeal No. 221 222/CE/APPL/NOIDA/2009, dated 31-7-2009 passed by the Commissioner (Appeals) Customs, Central Excise, (Meerut-II) Noida in the matter arising out of Order-in-Original No. 1/DBK/2009 dated 14-3-2009 2AC/CFS/ASB/09 dated 29-4-2009 as passed by the jurisdictional Additional Commissioner Customs, Dadri and Assistant Commissioner, CFS-Albatrors, ICD, Dadri respectively. 2. Brief facts of the case are that the appellant-exporter exported goods declared as lantern, decorative lantern, candle holder, bowl, decorative turtle, planter, decorative planter, wooden frame, wooden frame/box, telescope, wreath hanger, garden plate etc. from ICD, Dadri under duty drawback scheme. The classification of goods, for the purpose of claiming duty drawback, appeared not to be in consonance with the drawback schedule as the appellants had declared the aforesaid export goods to be Handicrafts/Artware of the constituent materials and accordingly claimed drawback separately on the constituent materials treating the goods as comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tern/Decorative Lantern/Candle Holder/Decorative Candle Holder and the like shall be classified under tariff item 9405 of the Drawback schedule (ii) Decorative crane/turtle/lizard shall be classified under tariff item 8306 of the drawback schedule. (iii) Planter/Decorative Planter/Wreath Hanger shall be classified under tariff item 8306 of the drawback schedule. (iv) Bowl shall be classified under tariff item 8306 of the drawback schedule. (v) Telescope shall be classified under tariff item 7419 of the Drawback schedule. (vi) Garden plate would be classified under tariff item 8310 of the drawback schedule. On having been aggrieved by these orders of the adjudicating authority, the applicant preferred an appeal before the jurisdictional Commissioner of Customs (Appeals) who after due consideration of submissions as made therein rejected the same thereby upholding the above order-in-original. 3. In this Revision Application, the applicants have made the following main grounds of submissions :- 3.1 The Department representatives presented misleading information which was wholly incorrect. The correct position is furnished here under for the kind perusal of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er and decorative lamps are undoubtedly the items of handicrafts duly certified by the authority functioning under Development Commissioner handicrafts and the export promotion council for handicrafts and most of them are not the composite articles. The Lantern, the decorative lantern and the candle holders are made of either brass, iron and or aluminum and if classified under the specific entry under Chapter heading 9405 also instead of Chapter 7326 meant for handicrafts there would have not been any difference in the amount of drawback claimed by the applicant and or sanctioned by the jurisdictional Commissioner of Customs ICD Star Trek, Dadri or Assistant Commissioner ICD Albatros, Dadri the adjudicating authorities of the two orders in original appealed against by the applicant. But unfortunately the jurisdictional Assistant Commissioners classified all the items made of Brass, iron, aluminum, glass under Chapter heading 940599 thus slashing down hugely and causing enormous loss to the applicant and to the business of export to a very large extent which has a very adverse telling effect on the export of handicrafts particularly in the times of world wide recession. 3.4 The ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be possible that if a few small scale units have claimed drawback on the candle holders under Chapter 9405 particularly because there is no difference in the rates of drawback. It is worth mentioning here that we have been observing the correct and lawful procedure and classify the goods as are quoted and offered to the Foreign Buyers irrespective of the fact that the amount of drawback is more or less. The amount of drawback had never been a matter of criteria for classification of the goods produced or exported by the applicant. 3.8 The adjudicating Assistant Commissioner in Para (viii) has referred to an instance of claiming drawback falsely for an items of brass builder and the like items under handicrafts from CFS Star track and CFS Albatros in two different chapters on the same date in the month of Feb., 2009. The factual position in the matter was that when we had furnished an invoice before Assistant Commissioner Star Trek, Dadri classifying the goods as builders hardwares and the identical goods to the same overseas buyer as handicraft before the Assistant Commissioner ICD Albatros. In this connection we wish to place before the Hon ble Government that this issue pertai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4. Order No. 255/2003, dated 28-7-2003 passed by Joint Secretary Government of India under Section 129DD of the Customs Act. 5. Order in appeal No. 117-Cus/MRT-II/2004, dated 28-5-2004 6. Order in original No. 01/Cus/ICD/2004, dated 6-2-2004 (i) In all these orders it was held that the adjudicating authority has relied upon the decision of Hon ble Supreme Court in the case of C.C.E., New Delhi v. Louis Shoppe - 1996 (83) E.L.T. 13 (S.C.). On the study of Circular No. 32/99, dated 4-6-1999, it is revealed that board has issued the above circular on the basis of above judgment of Hon ble Supreme Court, but later on, Board vide its Circular No. 56/99, dated 26-8-1999 has clarified that to accept the certificates issued by the EPCH for handicrafts by way of endorsement on the body of the shipping bills that the goods covered by such shipping bills are handicrafts. (ii) The above circular has been issued by the Government of India, Ministry of Finance, Department of Revenue, New Delhi. The instruction issued by the Board/Ministry are bindings on the officer of the Deptt. The Hon ble Supreme Court in the case of C.C.E., Vadodara v. Dhiren Chemicals Indu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... annot be brushed aside by introducing the personal opinion of the adjudicating officer. In this case we relied upon the following decision of the Hon ble Apex Court and is reproduced here below :- (i) The Hon ble Apex Court held that the Collector cannot replace his personal opinion by brushing aside the technical information given by the appellant who manufactured the products in the case of Hindustan Ferodo Ltd. v. Collector, 1997 (89) E.L.T. 16 (S.C.). (ii) In the case of M/s. Voltas Ltd. v. Commissioner of Customs, Mumbai - 2005 (182) E.L.T. 117 (Tri.-Mum.), the Hon ble CESTAT, West Zonal Bench, Mumbai held that where exemption is granted based on certified opinion of expert the adjudicating authority cannot question its correctness by his personal opinion vide para 8. (iii) In the case of Sunint Auto Pvt. Ltd. v. Commissioner of Customs, Delhi, 2005 (183) E.L.T. 209 (Tri.-Del) the Hon ble CESTAT, Northern Bench New Delhi held that personal opinion of Commissioner (Appeals) cannot be relied over expert opinion vide para 4. (iv) In the case of Ramayan Impex v. Commissioner of Customs (Exports), Nhava Sheva - 2005 (189) E.L.T. 446 (Tri.-Mumbai), the Hon ble CE ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld normally accept the certificates issued by the Development Commissioner (Handicrafts)/EPCH. A decision to reject the certificate issued by the Development Commissioner (Handicrafts)/EPCH certifying the goods as artware/handicraft would be taken only with the approval of the Commissioner of Customs/Central Excise and after discussions with the certificate issuing authority. The exports should not, in the mean time, be held up. Para 5. Doubts have also been expressed relating to interpretation of note and condition (3) of the Drawback Schedule Notification No. 103/2008-Cus. (N.T.), dated 29-8-2008. The note and condition provides as follows :- Notwithstanding anything contained in the said Schedule, all art ware or handicraft items shall be classified under the heading of art ware or handicraft (of constituent material) as mentioned in the relevant Chapters. The essence of this condition is that while the Drawback Schedule is aligned with the Customs Tariff at the 4 digit level, this alignment is not applicable to Art ware/Handicraft items. Art ware/Handicraft item made of a particular constituent material has to be classified under the heading of Art ware/Handicraft (of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... classification of an article (whether art ware/handicraft or other) in heading/sub-heading of the Drawback Schedule has been determined, then the Drawback rate and cap prescribed against that heading/sub-heading should be applied to the whole article irrespective of the value or weight of different constituents. Finally relied upon the below mentioned judgment for mandatorily observation of Board s instructions Circulars along with certificate of relieving statutory bodies :- (i) Hon ble Supreme Court (i) 1997 (94) E.L.T. 460 (S.C.) (ii) 1996 (87) E.L.T. 19 (S.C.) (iii) 1996 (88) E.L.T. 638 (S.C.) and (iv) 1997 (89) E.L.T. 441 (S.C.). (ii) Hon ble Supreme Court in the cases of C.C.E. v. Usha Martin Industries, 1997 (94) E.L.T. 460 (S.C.) = (1997) 7 SCC 47; (iii) Ranadey Micronutrients v. C.C.E. - 1996 (87) E.L.T. 19 (S.C.) = (1996) 10 SCC 387, (iv) C.C.E. v. Jayant Dalal (P) Ltd. - 1996 (88) E.L.T. 638 (S.C.) = (1997) 10 SCC 402, and (v) C.C.E. v. Kores (India) Ltd. - 1997 (89) E.L.T. 441 (S.C.) = (1997) 10 SCC 338. (B) :- Thereafter it was submitted that further for the sake of perusal of the Joint Secretary we enclose herewith the copies of the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nclusive stage for the basic main point i.e. as to whether the impugned export goods do qualifies or are to be disqualified from the claimed category of Handicrafts . For the purpose as above, Government notes that the lower authorities have specifically relied upon and concluded their findings for the purpose of above disqualification from declared handicraft category basically on their below mentioned observations as given in their discussion findings portions of impugned order :- (a) For finalizing the classification of goods as Handicrafts under Drawback Schedule, certificates issued by various organizations i.e. EPCH/Development Commission or Handicrafts/Metal Handicrafts service Centre (Ministry of Textiles, Government of India) etc. cannot be the sole basis. (b) Although the (Applicant) party failed to reply satisfactorily the department s query relating to individual processes of manufacturing of each of respective items and their general manufacturing processes i.e. (i) Designing. (ii) Pattern making by hand. (iii) Sheet cutting as per design. (iv) Pressing as per design. (v) Sound Casting/scrapping. (vi) Soldering/glass cut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns at para 3.13(A) above with supporting judgments for the correct and binding applicability of C.B.E. C. s Circular No. 3/2010-Cus., dated 12-2-2010 which is in continuation of earlier Board s Circulars No. 128/39/95-CX., dated 25-5-1995 No. 280/114/96-CX., dated 19-12-1996 (regarding applicability of above Apex Court decision in Louis Shoppe Case) and No. 56/99-Cus., dated 26-8-1999. Paras 4 5 of this circular stipulates as under :- 4. It is hereby clarified that the assessing authorities should normally accept the certificates issued by the Development Commissioner (Handicrafts)/EPCH. A decision to reject the certificate issued by the Development Commissioner (Handicrafts)/EPCH certifying the goods as artware/handicraft should be taken only with the approval of the Commissioner of Customs/Central Excise and after discussions with the certificate issuing authority. The export should not, in the mean time, be held up. 5. Doubts have also been expressed relating to interpretation of note and condition (3) of the Drawback Schedule notification No. 103/2008-Cus. (N.T.), dated 29-8-2008. The note and condition provides as follows : Notwithstanding anything contained in the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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