TMI Blog1998 (6) TMI 564X X X X Extracts X X X X X X X X Extracts X X X X ..... cation and the goods involved are Uninterrupted Power Supply (UPS) in respect of appeal C/13-R/98; measuring instruments in appeal No. C/167-R/98; and depressed centre grinding wheels in the third appeal. In respect of the UPS, the Assistant Commissioner of Customs held that the exemption against Serial No. 144A is for goods required for setting up of crude petroleum refinery. Since the Appellants are traders and had imported the goods for stock and trade, the exemption is not available as they were not even intended for use in crude petroleum refinery. The Commissioner (Appeals) upheld the Assistant Commissioner s order, by holding that the restrictions imposed by the expression required for setting up of crude petroleum refinery in seri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roleum refinery. This order of the Assistant Commissioner was also upheld by the Commissioner (Appeals), but held that grinding wheels are not tools but only parts of the tools. The Commissioner (Appeals) also held that the Notification exempts the goods required for setting up of crude petroleum refinery and hence the appellant has to demonstrate and establish that the goods imported by them are required for setting up of such refinery even though they themselves will not be actual users. He found that the appellants have failed to put forth any evidence in this respect. 4. Shri K.M. Mondal, the learned Consultant for the appellants submitted that in respect of measuring instruments and UPS, there is no dispute that they are covered by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the UPS and measuring instruments the Commissioner s (Appeals) order reads a supposed intention into the Notification which is not explicit in the wordings of the Notification itself. In respect of the Commissioner s (Appeals) order relating to the grinding wheel the Appellate Commissioner has admitted that actual user condition cannot be read into the Notification unless prescribed therein, but yet has concluded that the appellants are required to establish the intended use of the importer material in setting up of the crude petroleum refinery. The learned Consultant relied upon the case law in the case of Asean Trading Agency v. Collector - 1991 (55) E.L.T. 253 where the Tribunal has followed the Supreme Court judgment in the case of St ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or setting up of crude petroleum refinery. List 8A was also added by this Notification. There was yet another Notification amending this Notification being No. 55/97 which substituted List 8A and in this substituted list 8A we find that UPS is specifically covered at Serial No. 3 of the list as well as Serial No. 17 thereof. All types of instrumentation and measuring instruments are covered at Serial No. 27 thereof and tools are mentioned in Serial No. 45, along with consumables, etc. The structure of the Notification has to be seen, according to which the conditions for the exemption are separately indicated with reference to the serial number in the annexure to the Notification which will be the relevant condition for the exemption of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding wheels, fall within the description of the goods specified for the exemption against Serial No. 144A. This is the threshold which the goods should cross in order to fall within the exemption of the Notification. The exemption is not a blanket one for all UPS, measuring instruments, and grinding wheels, but it is meant for those which are specified in List 8A and which are also required for setting up of crude petroleum refinery. It is necessary in order to come within the ambit of the Notification, not only the goods should be included in the List 8A but there should be material to show that they are required for setting up of crude petroleum refinery. The two aspects have to be read together and not in isolation. The lower authorities ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an exercise which can be undertaken only after the initial threshold is crossed. See Supreme Court judgment in the case of UOI v. Wood Papers - 1990 (47) E.L.T. 500. In the Supreme Court judgment in Dalmia Dadri Cement case (supra) relied upon by appellants the exempted sale of cement to Electricity Board was on the basis of a certificate by the Board, that it was required for use in generation of electricity and the objection was that it was not actually used for entitlement to concession. In the Asean Trading Agency case of Tribunal (supra), there was finding, based on authorities on the subject, that glyoxol is a penetrator and finds use in leather industry and the Tribunal, on such a finding, held that the exemption cannot be denied. I ..... X X X X Extracts X X X X X X X X Extracts X X X X
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