TMI Blog2012 (10) TMI 739X X X X Extracts X X X X X X X X Extracts X X X X ..... /Shri Jitender Singh, R.S. Sharma, Advocates and B.L. Sharma, Consultant, for the Respondent. [Order per : Rakesh Kumar, Member (T)]. The respondents in this group of cases imported mountings and findings of Gold jewellery and claimed the benefit of duty exemption under Notification No. 62/2004-Cus., dated 12-5-04. This exemption notification prescribes concessional rate of duty for - (a) gold bars other than tola bars bearing manufacturers/refineries engraved serial number and weight expressed in metric units, gold coins; (b) gold in any form other than those specified in (a) above including liquid gold and tola bars and; (c) silver in any form. Explanation to this notification explains that for the purpose of this notification, the expression gold in any form or silver in any form shall include medallions and coins but shall not include jewellery made of gold or silver as the case may be and foreign currency coins. 1.1 The point of dispute in this case is as to whether the imported gold mountings and gold findings are gold in any form covered under the Notification No. 62/2004-Cus. and, hence, eligible for this exemption notification, or as c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of clarification to the Notification No. 62/2004-Cus., dated 12-5-2004 and the same cannot extend the scope of the notification. He, therefore, pleaded that the impugned orders-in- original passed by the Commissioners are not correct. 2.2 Shri Jitender Singh, Advocate, Shri R.S. Sharma, Advocate and Shri B.L. Sharma, Consultant, representing the respondents, in their oral submissions as well as written submissions submitted later, pleaded that the gold mountings and findings are not jewellery, that the same are nothing but structures of unfinished articles, that the Board in its Circular No. 40/2004-Cus., dated 4-6-2004 had clarified that findings and mountings of gold would be covered by the exemption Notification No. 62/2004-Cus., dated 12-5-2004 so long as they are classified under 71 of the Customs Tariff, that the same clarification has been given by the Board in its Circular No. 13/2006-Cus., dated 29-3-2006, wherein it has been clarified by the Board that the findings and mountings of gold and silver are covered within the scope of Sl. No. 2 and 3 respectively of the Notification No. 62/2004-Cus., dated 12-5-2004 and the concessional rate of import duty may be extended t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ect. We, therefore, do not accept the respondent s plea that these appeals are not maintainable, in view of the Board s Circular dated 17-8-11. The judgment of Hon ble Delhi High Court in the case of Commissioner of Income Tax Delhi-III v. M/s. P.S. Jain and Co. (supra) cited by them is not applicable to this group of cases. 5. Coming to the merits of the case, the goods, in question, are mountings and findings of the 18 Karat gold. The point of dispute is as to whether the duty exemption under Notification No. 62/2004-Cus. is available to these items. 6. Notification No. 62/2004-Cus., dated 12-5-04 is reproduced below :- Gold and Silver imported other than through post, courier or baggage Effective rate of duty Notification No. 80/97-Cus. superseded In exercise of the powers conferred by sub-section (1) of Section 25 of the Customs Act, 1962 (52 of 1962), the Central Government, being satisfied that it is necessary in the public interest so to do, and in supersession of the notification of the Government of India in the Ministry of Finance (Department of Revenue) No. 80/1997-Customs, dated the 21st October, 1997, published in the Gazette of India, Extraordinary vide, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... behalf of the M/s. Gem Palace and M/s. Om Shree Exports, the following submissions have been made - for manufacture of gold mountings, the gold of 18 Karat is melted and poured in machine made moulds to obtain the desired shape of mountings of article like necklaces, pendants, bangles, ear rings etc. In the said mountings, holes are there for studding of the precious/semi-precious stones. The output obtained by this process is called gold mounting. The respondents, however, imported machine made mountings. After import, the said mounting undergo the process of scratching so that the desired design and shape of the ornaments is obtained. Thereafter corners are scratched for fixing the stones. After making a proper space for fitting the stone the precious/semi-precious stones and naginas are fixed/studied . 8.1 In our view, the above submissions of the respondent confirms the Revenue s plea that the mountings are nothing, but semi-finished jewellery as the mounting described above have acquired the shape and character of jewellery. Some mountings may be such that fully finished jewellery can be made by just setting the gem stones, while in some mountings some scratching etc. may ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tructions and directions to officers of Customs as it may deem and such officers of Customs and all other persons employed in the execution of this Act shall observe and follow such orders, instructions and direction of the Board. In our view, while the Board under Section 151(a) of the Customs Act, can issue clarifications with regard to classification of a product or scope of an exemption notification, by such clarifications, the Board cannot expand the scope of an exemption notification issued by the Central Government under Section 25(1) of the Customs Act, 1962 as the Board is after all an office, subordinate to the Government of India. Constitutional Bench of the Hon ble Supreme Court in the case of C.C.E., Bolpur v. Ratan Melting Wire Industries reported in 2008 (231) E.L.T. 22 (S.C.) = 2008 (12) S.T.R. 416 (S.C.) has held that Circulars of the Board are binding only when the same are in accordance with the law. In this regard in para 6 of the above-mentioned judgment, the Apex Court has observed as under :- Circulars and Instructions issued by the Board are no doubt binding in law on the authorities under the respective statutes, but when the Supreme Court or the High ..... 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