TMI Blog2013 (2) TMI 228X X X X Extracts X X X X X X X X Extracts X X X X ..... II/ NR/1(14)/2003-04/123, dated 10-9-2008 issued by Assistant Commissioner (H), Northern Regional Office, New Delhi. This certificate is not questioned/rejected by the department - Circular No. 3/2010-Customs., dated 12-2-2010 issued vide F.No. 609/27/2009-DBK resolves that whole dispute. Board vide Circular No. 128/39/95-CX., dated 25-5-1995 had clarified that since the office of Development Commissioner (Handicraft) has treated imitation or real zari as handicrafts the same may be treated as handicrafts by the Customs and Central Excise Authorities – The board reiterated these guidelines vide Circular No. 32/99-Cus., dated 4-6-1999. The Board vide subsequent Circular No. 56/99-Cus., dated 26-8-1999 advised the field formations that they can accept the certificates issued by either the Development Commissioner (Handicrafts) or by the Export Promotion Council for Handicrafts (EPCH) - ). A decision to reject the certificate issued by the Development Commissioner (Handicraft)/EPCH Certifying the goods as artware/handicraft has to be taken only with the approval of the Commissioner of Customs/Central Excise and after discussion with the certificate issuing authority – Against the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation. Subsequently, applicant submitted a letter dated 17-2-2009 addressed to Assistant Commissioner, ICD, Moradabad submitting that their items are covered under DBK Sub-serial No. 732602 as handicraft/art ware of iron as per condition No. 3 provided in Notification No. 103/2008-Cus. (N.T.), dated 29-8-2008 is the sole ground for classification of disputed items. The adjudicating authority vide impugned order finalized the classification of the goods under dispute by classifying Furniture items under DBK Schedule Heading 9403. 3. Being aggrieved with the said orders of the adjudicating authority, respondent filed appeal before the Commissioner (Appeals) who set aside the impugned order and allowed the appeal. 4. Being aggrieved with the impugned order-in-appeal passed by the Commissioner of Customs (Appeals), Meerut, the applicant department has filed this revision application under Section 129DD of Customs Act, 1962 before Central Government on the following grounds : 4.1 That the party had wrongly declared their items on shipping bills other handicraft of Iron Aluminum and classified under Drawback Schedule Heading No. 732602 which cover other handicraft of Iron S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1975 shall mutatis mutandis apply for classifying the export goods listed in the said schedule. 4.5 The Commissioner (Appeals) in his order has entirely relied upon the submissions made by the party and has neither referred to the interpretation of condition No. 3 given by the adjudicating authority nor analyzed this condition anywhere in his order. An order-in-original, which is entirely based on interpretation of Condition No. 3, cannot be set aside without discussing the interpretation given in the order-in-original. A just and fair order must state why the interpretation given by the adjudicating authority is wrong and unacceptable. Since the Commissioner (Appeals also performs role of adjudicating authority as reiterated by Board vide its Instructions from F.No. 275/34/2006-CX.8A dated 18-2-2010 its order must be speaking i.e. it must give reason for rejecting the interpretation of lower authority and must also state its own interpretation. The order of the Commissioner (Appeals) is silent on the courts and is non-speaking. 4.6 The order-in-appeal is also completely silent on the meaning of Relevant Chapter assessing authority has stated that Relevant Chapter is decid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a, Advocates appeared for personal hearing on behalf of the respondent who reiterated the submission made in written reply dated 12-3-2011 and requested to uphold the impugned order-in-appeal. Nobody appeared for personal hearing on behalf of the applicant department. 7. Government has considered the relevant case records, written/oral submissions and perused the impugned orders-in-original and orders-in-appeal. 7.1 Government notes that the impugned goods were exported vide different shipping bills which were described by the respondent as other handicraft of iron and aluminium and classified under Drawback Schedule Heading No. 732602. Department considering alignment of Drawback Schedule upto four digits with HSN, classified the goods under Drawback Schedule Heading 9403 in Chapter 94 as furniture, with the logic that table, chairs etc. are very well covered by the definition of furniture and furniture are specifically covered under Chapter 94 (under sub-heading 9403). 7.2 Government observes that Chapter sub-heading 9403 simply cover other furniture and part thereof, made out of iron and steel whereas the Drawback Schedule Heading No. 732602 specifies other handicraft o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtificates issued by the Development Commissioner (Handicrafts)/EPCH. A decision to reject the certificate issued by the Development commissioner (Handicraft)/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. 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 artware or handicraft items shall be classified under the heading of artware 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 Artware/handicraft Items. Artware/Handicraft item made of a particular constituent material has to be classified under the heading of artware/handicraft (of that constituent material) as mention ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no. 3 starts with non-obstante clause and has the overriding effect over the other provisions. The adjudicating authority has not correctly interpreted the Condition No. 3, on the interpretation f the word of constituent material . Hence, the classification by the appellants of their products under the heading 732602 as Other Handicraft of Iron Steel is not without basis. 7.5 The above circular refers and reiterates that the guidelines issued vide earlier Circular Nos. 32/99-Cus., dated 4-6-1999 and 56/99-Cus., dated 26-8-1999 advised the field formations that they can accept the certificate issued either by the department Commissioner (Handicraft) or by the Export Promotion Council for handicraft (EPCH). A decision to reject the certificate issued by the Development Commissioner (Handicraft)/EPCH Certifying the goods as artware/handicraft has to be taken only with the approval of the Commissioner of Customs/Central Excise and after discussion with the certificate issuing authority. Government notes that the department neither contested the certificate issued by the office of Development Commissioner (H) nor decided to reject the said certificate. As such the said certific ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
