1. This appeal is directed against order-in-appeal dated 19-2-1990 passed by Collector (Appeals), Calcutta.
2. The Appellants have imported magnetic sine table. This was assessed to duty under C.T.H. 8479.89. Subsequently appellants filed refund claim claiming that the goods were actually classifiable under Heading 85.05 and description of goods as "Magnetic Sine Table having individual function" was forced on them by the Customs Authorities who assessed the goods under Heading 79.89. Collector (Appeals) upheld the order of the Assistant Collector rejecting their claim on the ground that there is no evidence that appellants were forced to give description of goods as magnetic appliances having individual function.
2. None appeared on behalf of the Appellants when the matter was called. However, they have asked for decision on merits. The ld. DR submits that once the goods are described as magnetic appliances having individual functions they would be classifiable under Heading 84.79 and not 85.05.
3. We have heard the ld. DR and perused the records. It is seen that bill of entry originally referred to these goods as simple magnetic sine tables. This was however subsequently changed to magnetic sine table mechanical appliance having individual function (other than for commodity production). Collector (Appeals) held that these goods were examined and that Customs Officers found that the description to tally with the description in Bill of Entry. Even at this stage no evidence has been placed before us that goods were actually simple magnetic sine table not mechanical appliances having individual function. The goods left the Customs charge and are not available for examination. Once the goods are cleared under the Bill of Entry without any objection it would be reasonable to hold that on examination goods were found to conform to the description given in the Bill of Entry unless there is evidence to the contrary. Such evidence has not been produced before us and the appellants are also not present to explain the position. In case of All India Glass Manufacturers' Federation v. C.C., 1991 (55) E.L.T. 5 (S.C.) dealing with claim of abatement of duty on damaged or deteriorated goods, the Hon'ble Apex Court held that damage to goods and consequently their lower price was not proved to the satisfaction of Customs officer before clearance of goods and therefore refund of proportionate customs duty was not admissible. Hon'ble Court held that the question of abatement can arise only in cases where such damage or deterioration is explained to the satisfaction of the proper officer.
Here also the claim is that goods are not as they are described in the Bill of Entry but such claim could be accepted only if the goods were not removed from the Customs charge unless as indicated earlier unimpeachable evidence is produced that the goods in fact are not how these are described in the Bill of Entry. No such evidence has been produced before us. The judgment of the Hon'ble Apex Court in case of All India Glass Manufacturers' Federation (supra) was followed by the Tribunal in case of Premnath Diesels (P) Ltd. v. C.C., Calcutta - 1996 (86) E.L.T. 668 (Tribunal). In that case a change in classification of imported goods was claimed after their clearance. It was held that since the goods are not available for verification by Customs refund claim seeking re-classification has to be rejected.
5. In view of this we reject the appeal as unsubstantiated and uphold the impugned order.