TMI Blog2019 (4) TMI 1360X X X X Extracts X X X X X X X X Extracts X X X X ..... t s claim for reclassification had been raised belatedly. Appeal allowed - decided in favor of appellant. - Appeal No. C/227/2008 - ORDER No. FO/A/77149/2018 - Dated:- 14-12-2018 - SHRI P. K. CHOUDHARY, MEMBER (JUDICIAL) AND SHRI BIJAY KUMAR, MEMBER (TECHNICAL) Shri Indranil Banerjee, Advocate for the Appellant (s) Shri S. Guha, A.C. (AR) for the Respondent(s) ORDER Per Bench. The appellant before us is aggrieved by the Order-In-Appeal No. 02/CUS/B-I/2008 dated 07.04.2008 passed by the Commissioner (Appeals), Central Excise, Custom Service Tax, Bhubaneswar, where under the appellant s claim for re-classification of the goods in question and conseq ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... objected to re-classification of the aforesaid goods under Tariff 8413.70. f) appellant s claim for remission of the Customs Duty involved was rejected vide the Order-In-Original dated 21.01.2004. The said matter was carried in appeal before this Tribunal which, vide Order dated 03.12.2007, confirmed the rejection of the claim for remission but remanded the matter to the lower appellate authority with the following observations: . . . . . in view of our decision as above, we direct the lower appellate authority to decide on the quantum of the duty to be paid by the respondents deciding on the dispute of classification and rate of duty in respect of the impugned goods, raised by the respondents be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is-a-vis goods imported and warehoused occurred when the said goods were cleared under Section 68 of the Act and not when the said goods were permitted to be warehoused under Section 60 of the said Act. The Learned Adjudicating Authority had erroneously proceeded on the basis that the goods in question had already been cleared and the legal act of importation completed when the goods had been warehoused, rendering the post-import event of pilferage/ goods being lost as irrelevant. The learned counsel relied on the following decisions to support his submissions on this point : i. Kiran Spinning Mills -Vs- Collector of Customs reported in 1990 (113) ELT 753 (SC); ii. Union of India Vs- Apar Pvt. Ltd. reported in 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the goods in question had been found missing/pilfered after clearance of the same and that the said incident was post-importation, the effect of which could not have been considered for the purpose of classification. The findings recorded at pages 8, 12 13 of the Order-In-Original, affirmed by the learned Commissioner (Appeals), leaves no manner of doubt that the authorities below had failed to appreciate that the taxable event in case of warehoused goods was the point in time when the said goods were sought to be cleared for home consumption and not before. There is no denying that the legal act of import in the present case would have been completed as and when the goods would have been cleared for home consumption by an order under Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d, warehoused and subsequently cleared. There, the Hon ble Judges of the Apex Court were pleased to hold as follows: . . . . . In other words, the taxable event occurs when the customs barrier is crossed. In the case of goods which are in the warehouse the customs barriers would be crossed when they are sought to be taken out of the customs and brought to the mass of goods in the country. Admittedly, this was done after 4th October, 1978. As on that day when the goods were so removed additional duty of excise under the said Ordinance was payable on goods manufactured after 4th October, 1978... We find that the aforementioned principle has been approved and reiterated in other decisions relied on by the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hority, failed to do precisely what he was required to do i.e. apply his mind independently and consider the evidences on record. It may be noted that the Department has not given any cogent reason as to why the goods in question were classifiable under tariff 3209.10 apart from the fact that this was the very entry mentioned by the appellant in its Bill of Entry. A perusal the relevant tariff entries given in the Customs Tariff Act, 1975 supports our finding that centrifugal pumps, whether independently identified or considered as part of the Water Treatment and Distribution System, could not have been classified under the tariff 3290.10. The said tariff Entry runs as : 3209 Paints and V ..... X X X X Extracts X X X X X X X X Extracts X X X X
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