TMI Blog2013 (5) TMI 792X X X X Extracts X X X X X X X X Extracts X X X X ..... ate issuing authority despite the specific direction on remand order. The reasoning taken by adjudicating authority is legally not tenable since this C.B.E. & C. Circular talk of certificate and not certification on shipping bill. The adjudicating authority has failed to comply with the direction of higher authority and thus did not follow the well settled principles of judicial discipline. Since the procedure laid down in C.B.E. & C. Circular No. 3/10-Cus., dated 12-2-2010 was not followed, Assistant Commissioner, Customs would have not rejected the said certificates on his own. As such Commissioner (Appeals) has rightly accepted the certificate of EPCH and held the classification under Sl. No. 7326 of DBK Schedule - Decided against Revenue. - F. No. 380/13/DBK/12-RA - Order No. 143/2013-Cus - Dated:- 30-5-2013 - Shri D.P. Singh, Joint Secretary Shri A.K. Raha and Shuchimoy Burman, Representatives, for the Assessee. Shri L.K. Narang, AC, for the Department. ORDER This revision application is filed by the applicant Commissioner of Customs Central Excise, Noida against order-in-appeal No. 140/Cus/APPL/NOIDA/12, dated 18-5-2012 Commissioner of Customs and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... done as required under the law. Although the party submitted the certificate along with drawback claim at a later stage which was meaningless as the goods were not available for verification along with the Certificate. The finding of the adjudicating authority regarding the impugned goods with reference to Heading Nos. 7321 and 7323 in paras 5 to 8 of order-in-original are reproduced below : On perusal of above description it reveals that the goods in question are in nature of non-electric domestic appliances made up of iron and used for the purpose of warming the surroundings. These can be termed as Non-electrical warmer using firewood as fuel. The product cannot function in the absence of solid fuel. The above observation has nowhere been rebutted by the exporter neither in their submission at the time of personal hearing. However, in order to arrive at the correct classification of the goods, the description under both the Heading 7321 and 7323 has to be examined in the light of observation cited supra and submissions made by the exporter. The Heading 7321 of the first schedule to Customs Tariff Act, 1975 reads is as under : 7321 - Stoves, ranges, grates, cookers (incl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the certificates and endorsement on invoices, if any, are issued and submitted after the export of the goods which indicate hidden intention of the party to claim inadmissible drawback at higher rate. 4.3 Further, the Commissioner (Appeals) also failed to observe that the party nowhere in the shipping bill mentioned the word Handicraft to avoid the attention of the department. Under these circumstances, there was no ground before officers for drawing samples from impugned consignment at the time of export. Hence, the plea that samples were not drawn by the Department is baseless and mis-leading. 4.4 Further, the Commissioner (Appeals) relied upon the certificate dated 2-7-2009 issued by the Chartered Engineer that the product requires major part of the manufacturing work by hand. First of all, it may be seen that the certificate has been issued after the dispatch of the goods i.e without examining the impugned goods which cannot be entertained in view of the provisions of Circular No. 56/99-Cus. as stated above. However, process of manufacture under-taken for the impugned goods as stated in the said certificate is as under : 1. Designing 2. Pattern Making b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner (Appeals), Customs Central Excise, Noida is not proper sustainable and therefore requires to be set aside. 5. A show cause notice was issued to the respondent under Section 129DD of the Customs Act, 1962 to file their counter reply. They produced their written submission at the time of personal hearing in which they have mainly submitted that: 5.1 It is contended by the department that the reason why no sample was drawn for verification of the drawback claim of the respondent was that the certificates of the MHSC and the EPCH were not endorsed on the shipping bills in terms of Board s instruction contained in Circular No. 56/99. Hence in the absence of the sample, it was not possible to verify the subsequent claim of the party for drawback under Heading 7326 as Handicraft. 5.1.1 The above plea of the department is clearly untenable in the face of express mandate in C.B.E. C. Circular No. 34/95-Cus., dated 6-4-1995 for drawal of sample where the amount of drawback per shipping bill is ₹ 1 lakh and above. The relevant mandate is contained in para 3(III) of the said circular which is quoted below : Where the amount of drawback per shipping bill is ₹ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aken only with approval of the Commissioner and after discussions with the certificate issuing authority . In view of the above, the learned Commissioner (Appeals) was eminently justified in setting aside the impugned de novo order on the ground that the above directives of the Revision Authority and the Board were clearly and blatantly flouted by the adjudicating authority by rejecting the certificates once again without approval of the Commissioner and without consultation with the certifying authorities. 5.2 It is contended by the department that the Commissioner (Appeals) s reliance on Board s Circular No. 7/2011 was misplaced inasmuch as the question of rejection or acceptance of the certificates produced after export would not arise. 5.2.1 The Commissioner (Appeals) has correctly observed that it was not necessary for the respondent to have every shipping bill endorsed with the certificate of EPCH or Development Commissioner (Handicrafts) in view of the clarificatory circulars of the Board referred to above. Thus it was not correct for the department to make it a ground for rejection of the certificates of EPCH and MHSC. 5.2.2 The Commissioner (Appeals) has correc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 003 (157) E.L.T. 645 (Tri. - Mum.) - Sandvik Asia Ltd. vs. C.C.E., Pune (e) 2007 (210) E.L.T. 180 (S.C.) - Sterlite Industries (India) Ltd. v. C.C., Chennai (f) 2009 (235) E.L.T. 298 (Tri. - Chennai) - Dohler Flavorade v. C.C.E., Chennai The commonality in the above judgments is the uniform verdict that an assessee is entitled to claim relief under a changed/alternate tariff head for classification purposes even at appeal stage. In the subject case the possibility of alternate classification, based on the certificate of MHSC was considered by the original adjudicating authority in his order, dated 25-4-2009. In subsequent stages of appeal and Revision Application, the respondent pleaded for consideration of alternate classification which in fact was duly taken into consideration. In view of the above, the department s contention that it is not open for the respondent to claim the benefit of alternate classification after export merits rejection. 5.3 The department contended that the Commissioner (Appeals) failed to observe that as the impugned goods were not described as Handicrafts on the Shipping Bills, there was no ground for the proper officer to draw sam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Nor was any consultation held with the said certifying authorities by the learned adjudicating authority. In the above circumstances, based on those two certificates, and more importantly the detailed letter of the EPCH, the classification merited to be settled under Heading 7326. The respondent s reliance on the Chartered Engineer s certificate is only by way of a corroborative evidence, which though not prescribed by the Board in its circulars, has substantive value as evidence. 5.4.1 The assumption of the department that majority of the processes listed out by the Chartered Engineer cannot be carried out without the aid of machines is unfounded, unsubstantiated, naive and also presumptuous. Besides, any such conclusion drawn by the department is bound to be self-contradictory in the face of its admission that in the absence of the goods/sample it is not possible to verify the claim of the party for drawback under Heading 7326 as handicraft. 5.4.2 It is the case of the respondent that the learned Commissioner (Appeals) has correctly referred to and relied upon the certificate of the Chartered Engineer wherein it has been certified that the product requires major part of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly a notice was issued to the Applicant to explain as to why the said goods should not be classified under Heading 7321 instead of 7323. The Applicant filed a written submission that their product merit classification under Tariff Heading 732304 alternatively it can be classified under Heading 732602 as handicrafts of iron and steel . However the adjudicating authority after discussing the issue in depth classified the goods under Heading 7321 instead of 7323 of drawback schedule vide Order-in-Original, dated 25-4-2009. The Commissioner (Appeals) vide Order-in-Appeal dated 29-1-2010 upheld the impugned Order-in-Original. 8.1 Applicant filed revision application against the said Order-in-Appeal, dated 29-1-2010 which was decided vide GOI Revision Order No. 37/11-Cus., dated 22-2-2011 and case was remanded back to original authority with the direction to decide case afresh after following the instruction contained in C.B.E. C. Circular No. 3/10-Cus., dated 12-2-10 and examining the submission of applicant on merits of the case. The Assistant Commissioner of Customs (ICD), Dadri vide order-in-original, dated 30-1-2012 again classified the said item under Sl. No. 7321 of DBK Sche ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... T)] wherein the product i.e. metal photoframe failed the criteria of hand made and DGTD Certificates of handicrafts were not accepted. Further Government also notes that in respect of the Export items under reference neither there was much scope nor the gracing thereof with substantial ornamentation inlay of artistic improvement appears to have been done. Thus there is no evidence of confirmatory nature on record in this regard and to determine that criterions laid down by Hon ble Supreme Court is satisfied. Further the size/manner/process of actual use of this item either for household use or out side gardens is also in dispute. 11. Government therefore is of considered opinion that this case matter as such is of now weighs heavily in favour of the Respondent department and the Applicant party is unable to satisfactorily establish the details of individual (product wise) category of artistic handicraft nature as well as hand made criterion along with claimed both in house (household) or out house (gardens) use of this product. 12. Apart from above, Government however takes note of Applicant one of the main objections of not accepting the respective Handicraft Certificat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10 of the judgment in case of Escorts Ltd. v. CCE, Delhi [2004 (173) E.L.T. 113 (S.C.)] which inter alia stipulates . that . One additional or different fat may make a word of difference between conclusion of two case; further in para 11 further inferred as following :- the following words of Lord Denning in the matter of applying precedents have become . Each Case depends on its own facts and a close similarity between one case and another is not enough because a single detail may alter .The entire aspect . Further the Apex Court in Number of its judgments including Suksha International v. UOI [1993 (39) E.L.T. 503 (S.C.)] and Formical India 1995 (77) E.L.T. S71 (S.C.)] has time and again stressed that substantial benefits of exports should not be denied on technical procedural inferactions only and efforts should be such that authorities should not take away with other hand the benefits which policy makes available/gives with one hand. 14. So keeping in view the whole case matter in totality Government sets aside the impugned orders and remands this case matter back to original authority for de novo proceedings. Needless to say that not only all the observations con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xcise and after discussion with the certificate issuing authority. The original authority was directed to comply with these C.B.E. C. instruction in GOI Revision Order No. 37/11-Cus., dated 22-2-2011. The adjudicating authority has neither referred the matter to Commissioner nor taken his approval and discussed the case with certificate issuing authority despite the specific direction on remand order. The reasoning taken by adjudicating authority is legally not tenable since this C.B.E. C. Circular talk of certificate and not certification on shipping bill. The adjudicating authority has failed to comply with the direction of higher authority and thus did not follow the well settled principles of judicial discipline. The jurisdictional supervisory authorities ought to have taken remedial measures in the matter. As such the findings of original authority cannot sustain in the eyes of law. 9.4 Government further noted that Commissioner (Appeals) has examined the classification issue in this case and relied upon to certificates issued by Export Promotion Council for Handicrafts on the Invoice No. 542/08, dated 30-1-2009 certifying the 30 inches iron fire pit code No. 3802 as a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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