TMI Blog1990 (5) TMI 144X X X X Extracts X X X X X X X X Extracts X X X X ..... f Entry filed at Rampur. The Customs Authorities classified some of the goods imported under Tariff Item 90.10. They have also classified it for the purpose of countervailing duty under Tariff Item 33D of the Central Excise Tariff. The appellants thereafter taken the credit of duty paid under Tariff Item 33D. On the basis of an audit objection regarding granting the proforma credit in respect of items classified under Tariff Item 33D, a Show Cause Notice dated 21-7-1988 was issued alleging that the permission to avail the credit under Rule 56A was granted only because of the averment that they would import the goods in CKD/SKD condition. On receiving the reply the Assistant Collector cancelled the proforma credit granted to the appellants. On appeal the Collector confirmed the order of the Assistant Collector. Hence the appeal before us. 4. The Collector held that it is admitted by the appellants that the components under import were not classifiable under Tariff Item No. 33D, but they are classifiable under Tariff Item No. 68 which did not entitle the appellants for proforma credit of duty under Rule 56A of the Central Excise Rules. He also held that the appellants by filing the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tervailing duty as appropriate , and they have not stated that they are importing Photocopying machines in CKD/SKD condition. Therefore, the question of mis-declaring does not arise. The invoice of suppliers, the packing list of the suppliers, the Bills of Entry, D 3 intimation, R.G. 23 Part I and Part II, Registers, and the physical verification of each individual consignment by the officers disclosed the position that what was imported was only components. In the Bills of Entry major portion of items were classified under various Tariff Items, except those that are falling under Tariff Item 90.10, in respect of which countervailing duty under Tariff Item No. 33D was charged. The classification is in pursuance of Working Schedule furnished by the authorities. If it were an import" of Xerographic equipment in CKD/SKD condition the classification of the entire imports fall under Tariff Item 90.10. 6. It is next contended that there is no substance in the allegation that there is suppression of facts, for the reason that in July, 1985, the detailed scrutiny of the entire proforma credit availed by the appellants was undertaken by the Department. After the scrutiny a show cause noti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 33D. Therefore, Rule 56A(ii) is not applicable and the appellants cannot take advantage of wrong classification by the Customs authorities and avail proforma credit. He further submitted that in 1979 the second proviso was introduced under which, if goods fall under Tariff Item 68 the applicability of Rule 56A is ruled out. Therefore, the Central Excise authorities should re-examine to this extent namely, whether the goods are classifiable under Tariff Item 68 or not before allowing the proforma credit. Therefore, the contention that the Central Excise authorities have no jurisdiction to re-classify and that they are bound by the classification made by the Customs authorities is untenable. His further contention is that the Central Excise officers have to independently examine the issue of classification before allowing the proforma credit under Rule 56A, otherwise the second proviso becomes redundant. He also submitted that the order of the Tribunal in Jay Industries, Hyderabad v. Collector of Central Excise, Hyderabad relates to the period when the second proviso was not in the Statute Book and therefore, distinguishable. 9. It is next contended that the request made by the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... menclatures of the Indian Customs Tariff Schedule of 1975 which came into force in the middle of 1976 (i.e. prior to the import of the present goods) on the one hand and the amendment to Item 15A CET brought about by the Finance Bill (No. 2) of 1977 on the other. Be that as it may, the fact is that the classification and assessment adopted by the Bombay Customs authorities had become final since there is nothing on record to show that the appellants protested against the said assessment or claimed refund. Indeed the appellants are on record as not having claimed refund, but having acquiesced in the said assessment. In the circumstances, we do not see how the Central Excise authorities at Hyderabad could have re-opened the assessment done by the Bombay Customs authorities. If they had any doubts about the correctness of the assessment, they should have moved the proper authority for a review of the assessment. But they had no jurisdiction to re-assess the goods, at it were, and declare that the goods did not attract countervailing duty as resins. Once this position is accepted, all the consequential steps which they took by way of asking the appellants to re-credit the amount of pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he contention of the appellants is that they are importing components of photocopying machines. In order to determine whether the letter created an impression on the Central Excise authorities that the appellants are importing photocopying machines in CKD/SKD condition, we have to refer to the letter dated 19-12-1984 and the reply given by the Assistant Collector. The relevant letter and the reply reads as follows :- We shall be shortly receiving the imported consignments in CKD/SKD condition, which will attract countervailing duty as appropriate. We intend availing ourselves of Proforma Credit under Rule 56A of the Central Excise Rules, 1944 in respect of the goods covered in the Bill of Entry. We now seek your permission to allow us this facility against goods received at our Plant after payment of countervailing duty, which may please be expedited. Please refer to your letter dated 19-12-1984 for seeking permission to avail proforma credit of countervailing duty paid on imported consignment in CKD/SKD condition for the manufacture of Xerox Photostat Machines falling under T.I. No. 33-D of C.E. Tariff. 2. The Assistant Collector of Central Excise, Rampur has been pleased ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lassifies under Tariff Item 33D. 17. It is not the case of the respondent that the classification of the goods for the purpose of customs under Tariff Item 90.10 is also wrong. Therefore, it is not as though the Department was guided by what the appellants have stated in their letter dated 19-12-1984. The Customs authorities have independently applied their mind while determining the classification of various items under the Customs Tariff and also the corresponding classification for countervailing duty. All these materials is before the Central Excise authorities in black white and there is no scope for being misled by the appellants. The Central Excise authorities with their eyes wide open assessed the goods on the basis of the classification made by the Customs authorities and allowed the proforma credit. Therefore, there is no material to establish suppression or mis-declaration and consequently the show cause notice is barred by limitation. We accordingly, allow the appeal and set aside the order of the Collector. 18. In the light of the view which we are taking it is not necessary to consider the other arguments advanced by both Shri Sreedharan and Shri Asthana. - - ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
