Rathi Alloys and Steel Ltd. Vs. Collector of Customs - Court Judgment

Excerpt:

.....appearing on behalf of the appellants submits that refractory bricks under import had actually been used as part of electric furnace in the factory premises.4. he submits that being part of the industrial furnace, the refractory bricks are of special size, shape and quality and are entitled for the benefit of notification no. 124/87-cus., dated 1-3-1987.5. shri s.n. ojha, jdr appearing on behalf of the respondent submitted that the notification no. 124/87-cus., dated 1-3-1987 provides exemption to the refractory bricks of special shape or quality for use as component parts of industrial furnace. he submits that the appellants have not produced any evidence to show that the refractory bricks are of special shape and size or quality for use as component parts of industrial furnace before the authorities. he therefore, prays that the appeal be dismissed.6. heard both sides. in this case, the appellants made import of refractory bricks and filed bill of entry claiming the benefit of notification no. 69/87-cus., dated 1-3-1987. the goods were assessed provisionally and thereafter, the show-cause notice was issued to the appellants on the ground that the refractory bricks.....

Judgment:

1. The appellants filed this appeal against the order-in-appeal dated 23-7-1993 passed by the Collector, Customs (Appeals), New Delhi. Vide impugned order, the Collector, Customs (Appeals) dismissed four appeals, however, the appellants have filed this appeal against the order-in-appeal passed by the Collector, Customs (Appeals) in Appeal No. 107/CE/JPR/93.

2. In this case, the benefit of Notification No. 124/87-Cus., dated 1-3-1987 was denied to the refractory bricks imported by the appellants on the ground that the appellants have not proved that the refractory bricks are of special shape and size or quality provided under the Notification No. 124/87-Cus.

3. Ld. Consultant appearing on behalf of the appellants submits that refractory bricks under import had actually been used as part of electric furnace in the factory premises.

4. He submits that being part of the industrial furnace, the refractory bricks are of special size, shape and quality and are entitled for the benefit of Notification No. 124/87-Cus., dated 1-3-1987.

5. Shri S.N. Ojha, JDR appearing on behalf of the respondent submitted that the Notification No. 124/87-Cus., dated 1-3-1987 provides exemption to the refractory bricks of special shape or quality for use as component parts of industrial furnace. He submits that the appellants have not produced any evidence to show that the refractory bricks are of special shape and size or quality for use as component parts of industrial furnace before the authorities. He therefore, prays that the appeal be dismissed.

6. Heard both sides. In this case, the appellants made import of refractory bricks and filed Bill of Entry claiming the benefit of Notification No. 69/87-Cus., dated 1-3-1987. The goods were assessed provisionally and thereafter, the show-cause notice was issued to the appellants on the ground that the refractory bricks imported by the appellants being the product of ceramic material required to be assessed under Notification No. 68/87-Cus., dated 1-3-1987 and the appellants are not entitled for the benefit of Notification No.69/87-Cus., dated 1-3-1987 as the Notification does not cover the articles made of ceramic materials. The appellants filed replies to the show cause notice and in the reply to the show cause notice, they did not claim the benefit of Notification No. 124/87-Cus., dated 1-3-1987.

The adjudicating authority held that Notification No. 69/87-Cus., dated 1-3-1987 specifically excluded the articles made of ceramic materials and therefore, the appellants are not entitled for the benefit of this notification. However, the benefit of Notification No. 68/87-Cus., dated 1-3-1987 was granted to the appellants. The appellants filed an appeal before the Collector, Customs (Appeals) and in the appeal, the appellants claimed the benefit of Notification No. 124/87-Cus., dated 1-3-1987. The Collector, Customs (Appeals) in the impugned order held that though the appellants had put forth the claim under the Notification, their contentions are on post-clearance goods and without having made even the claim to this effect before clearance of the goods from Customs charge, what to say of substantiating the claim by necessary catalogue for the goods and other evidence. The contentions of the appellants at this stage on this point are unsustainable.

7. Notification No. 124/87-Cus., dated 1-3-1987 provides exemption to the efractory bricks of special shape or quality used in the industrial furnace. The appellants had produced before us a communication dated 13-10-1987 from M/s. Norinco Pvt. Ltd. to the effect that the refractory bricks imported by the appellants are special shape and quality and for use as component part of industrial furnace. He also produced a catalogue of Radex, supplier of the bricks. From the catalogue, we are unable to find that the refractory bricks imported by the appellants are of special shape or quality. The catalogue is in respect of general use of the refractory bricks produced by the Radex Company and we are not enable to correlate the goods imported by the appellants with the goods mentioned in the catalogue. The Hon'ble Supreme Court in the case of Mangalore Chemicals and Fertilizers Ltd. v. Dy. Commissioner reported in 1991 (55) E.L.T. 437 (S.C.) held that it is an equally well-known principle that a person who claims an exemption has to establish his case.

In view of the above discussions, we do not find any merit in the appeal. The appeal is dismissed.