9911796707
TMI Blog1998 (5) TMI 97X X X X Extracts X X X X X X X X Extracts X X X X ..... ion under sub-section (1) of Section 25 of Customs Act to the product "insulated copper wire thinner than 44 S.W.G." falling under Heading No. 85.44 of the First Schedule of the Customs Tariff Act when imported into India, from - (a) so much of that portion of the duty of customs leviable thereon, which is specified in the said First Schedule, as is in excess of 40% ad valorem; and (b) the whole of the additional duty leviable thereon under Section 3 of the second mentioned Act. Explanation : In this notification, the abbreviation "S.W.G." means Standard Wire Gauge which is used for measuring diameter. 2. There is no dispute in these appeals on any of the matters pertaining to the wire being thinner than 44 S.W.G. or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Notification. He also points out that the Commissioner has proceeded in the present case on a material obtained from Bureau of Indian Standards which has given merely common opinion on the subject of wire and cables. Consultant submits that this material was never placed and it cannot be considered for the purpose of interpreting the Notification. 4. Ld. D.R. submits that there is no res judicata in taxation matters and where in case of 2 opinions, 2 different Commissioners (Appeals) have accepted their plea, it does not mean that 3rd Commissioner should also follow a similar order. 5. On a careful consideration of the submissions, we notice that the issue is in a restricted scope in as much as to whether the bunch of wires in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r in a common insulating sheath H.S.N. could also be considered as insulated wires. In view of this explanatory notes, where wires thinner than 44 SWG are single or multiple strand insulated wires assembled together in a common insulating sheath, they would still be considered as a wire for the purpose of Heading 85.44. The said explanatory notes have a bearing for interpreting the terms in the Notification. A different view would make the notification Otiose. The Notification has to be read in such a way as it should not make it otiose. Further, the Consultant's plea that the Commissioner is guided by some material which was not on records as pointed out by the appellants is also an acceptable proposition. We notice that an opinion from t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er to their test house and the test house after a test have clearly certified that the wire is thinner than 50 SWG by reported dated 22-11-1991. Therefore, this material which is in favour of the appellants cannot be rejected in favour of an opinion of Bureau of Indian Standards. It was not even relied by the Department in the show cause notice or which was a subject matter of adjudication. 6. In that view of the matter, the reliance on explanatory notes to explain that wire, cables; single or multiple strands should be accepted for the purpose of understanding the terms in the Notification and on such understanding, the benefit of the Notification is required to be extended. Therefore, the impugned order is set aside and the appeals ..... X X X X Extracts X X X X X X X X Extracts X X X X
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