9911796707
TMI Blog1992 (8) TMI 72X X X X Extracts X X X X X X X X Extracts X X X X ..... tomatically controlling the flow, depth, pressure or other variables of liquids or gases or for automatically controlling temperature (for example, pressure gauges, thermostats, level gauges, flow meters, heat meters, automatic oven-draught regulators), not being articles, falling within Heading No. 90.14 : (1) Not elsewhere specified (2) Thermostats and humidistats 40% 60% (Emphasis added) The assessee also paid an auxiliary duty at 5% in respect of the imports. 3. Subsequently, the assessee claimed a refund of the auxiliary duty paid on the ground that the item was chargeable to customs duty at 40% only, without the levy of the auxiliary duty of 5%. This claim was based on the terms of Notification No. 35/79-Cus. dated 15-2-1979 read with Notification No. 41/80-Cus. dated 25-3-1980. This claim for refund was rejected by the Assistant Collector and the Appellate Collector. When the matter came up before the Tribunal, it was inclined to take a view against the assessee but, as there was an earlier decision of the Tribunal to the contrary, decided to follow it and hold against the department. The Tribunal, therefore, allowed the assessee's appeals. The department has preferre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he assessee's case is that the pressure gauges imported by it are the parts of articles which admittedly fall under Heading No. 84.04/05 and are chargeable to a basic customs duty of 40%. So the parts cannot be charged to duty at a rate in excess of 40%. On this, indeed, there is no dispute. 5. There is dispute however, regarding its claim for exemption from the levy of auxiliary duty. This claim is based on Notification No. 41/80 which, to the extent relevant, reads as follows : "In exercise of the powers conferred by sub-section (1) of Section 25 of the Customs Act, 1962 (52 of 1962), read with sub-section (4) of Section 4 of the Finance Act, 1980 (13 of 1980) and in supersession of the Notification of the Government of India in the Ministry of Finance (Department of Revenue) No. 27-Customs, dated the 12th March, 1980, the Central Government, being satisfied that it is necessary in the public interest so to do, hereby exempts the goods which are partially or wholly exempt from the duty of Customs specified in the First Schedule to the Customs Tariff Act, 1975 (51 of 1975) by virtue of the Notifications of the Government of India in the Ministry of Finance or in the Department o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /05 and that condition if fulfilled here as the pressure gauges, though assessable under Heading No. 92.04, are parts of steam engines which fall under Heading No. 84.04/05. There is no controversy before us that the pressure gauges imported by the assessee are parts of steam turbines manufactured by it and that the parts have been imported for the purpose of initial setting up of the steam engine or for its assembly or manufacture. The provisions of the first part of Notification No. 35/79 are, therefore, fulfilled. The contents of the Note to which our attention has been drawn are not, in our opinion, of any assistance. Note 1(g) is of no assistance at all. Note 1(1) only makes it clear that pressure gauges will be assessable under Item Heading No. 90.24 and cannot be brought under 84.04/05 or any other item heading in chapters falling under Section XVI merely because they are parts of such article. Similarly, Note 2 to Section XVI only makes it clear that even parts of machinery may be assessable under the same heading as the main machinery, provided they form an integral part of the machine and are suitable for use more or less or principally with a particular kind of machine o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed for a class of goods. The 1979 notification grants an exemption or concession in respect of the basic duty payable on certain classes of goods viz. parts of articles which fall under one of the specified headings and required for certain purposes. The purport and intention of the 1980 notification is to exempt the class of goods falling under the purview of the 1979 notification from auxiliary duty as well. The exemption under the 1980 notification does not depend, in this view, on the practical effect of the application of the 1979 notification in a particular case. Its applicability should not be confined to items of goods in respect of which a reduction in duty is actually enjoyed under one of the notifications included in the Schedule to the 1980 notification. There appears to be no logic in saying that the exemption from auxiliary duty in respect of the same part will be available only where the duty chargeable on the part is more than, but becomes equal to, that on the whole article by applying the 1979 notification but not where the duty on the part is the same as that of the whole even otherwise. Equally, it seems absurd to say that when the part suffers a basic duty of ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
