Express Industries Vs. Commissioner of Customs

Express Industries vs Commissioner of Customs

Type Court Judgment Court Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai Decided Nov 01, 2002

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Citation: sooperkanoon.com/29252
Court: Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai
Judge: S T Gowri, G Srinivasan
Decided On: Nov 01, 2002
Subject: Land Acquisition

Case Summary

AI-generated summary - not the official court judgment text.

Land Acquisition

Key legal issue: Land Acquisition

Parties & Advocates

Appellant / Petitioner

Express Industries

Respondent

Commissioner of Customs

Legal References

Reported In: (2003)(162)ELT567Tri(Mum.)bai

Excerpt

.....determined by the assistant commissioner and declined to extend the benefit of the exemption contained in the notification by observing that the relevant entry in question was not in existence in august, 1990, when the appellant filed the bill of entry. hence this appeal.3. counsel for the appellant accepts before us that the goods have been correctly classified in heading 94.05. he however contends that, by applying the provisions of section 15(1)c of the act, the relevant entry of the notification would be available because the goods were removed from the bonded warehouse on 19.11.1992 by which time it was part of the notification. he contends that in that event the short levy could only be rs. 11,774/- which he does not dispute.4. we are not able to accept the contention of the departmental representative that the benefit of the exemption is being claimed before us for the first time. we have already recorded that the commissioner (appeals) has declined to grant the claim for exemption.this reasoning is clearly wrong. the ex-bond bill of entry shows the date of payment of duty as 19^th november, 1992 and the goods therefore had been removed from the warehouse at this stage. it is the rate of duty prevailing on the date of removal of the goods from the bonded warehouse, that would apply. the commissioner (appeals) has obviously incorrectly failed to take note of the ex-bond clearances. it is clear - although the commissioner (appeals)'s order is silent - on this, the exemption contained in entry 19 which is for goods falling in heading 94.05 except for items specified in entry 7 to 9 of the notification - would be available to these goods. they are made of plastic and are clearly not in those goods specified in any of the entries at 7 to 9.

Full Judgment

2. The appellant imported in August, 1990 a consignment of goods described as gold plated plastic moulded round bowls, and filed a bill of entry for warehousing them. The goods were classified in hearing 85.09 of the Customs tariff. This heading covers electro-mechanical domestic appliances, with self-contained electric motor, and parts thereof. The appellant, after filing ex-bond bill of entry, cleared the goods fro the bonded warehouse on 19.11.1992 after paying customs duty and additional duty at the rate applicable to heading 8509.90. Notice was consequently issued to the appellant alleging that the goods were correctly classifiable in heading 9405.92 as lighting fittings, and demanding differential additional duty of customs of Rs. 1,00,983/-.

The basic duty of customs leviable on goods of heading 85.09 and 94.05 is the same. The Assistant Commissioner has confirmed the demand. After a round of proceedings the mater was remanded to the Assistant Commissioner, he again confirmed the demand. The assessee appealed the classification as determined by the department and raising an alternative plea that even on the classification decided by the department, the benefit of the exemption contained in entry 10 of the table to notification 10/90 would be available. The Commissioner (Appeals) confirmed the classification determined by the Assistant Commissioner and declined to extend the benefit of the exemption contained in the notification by observing that the relevant entry in question was not in existence in August, 1990, when the appellant filed the bill of entry. Hence this appeal.

3. Counsel for the appellant accepts before us that the goods have been correctly classified in heading 94.05. He however contends that, by applying the provisions of Section 15(1)C of the Act, the relevant entry of the notification would be available because the goods were removed from the bonded warehouse on 19.11.1992 by which time it was part of the notification. He contends that in that event the short levy could only be Rs. 11,774/- which he does not dispute.

4. We are not able to accept the contention of the departmental representative that the benefit of the exemption is being claimed before us for the first time. We have already recorded that the Commissioner (Appeals) has declined to grant the claim for exemption.

This reasoning is clearly wrong. The ex-bond bill of entry shows the date of payment of duty as 19^th November, 1992 and the goods therefore had been removed from the warehouse at this stage. It is the rate of duty prevailing on the date of removal of the goods from the bonded warehouse, that would apply. The Commissioner (Appeals) has obviously incorrectly failed to take note of the ex-bond clearances. It is clear - although the Commissioner (Appeals)'s order is silent - on this, the exemption contained in entry 19 which is for goods falling in heading 94.05 except for items specified in entry 7 to 9 of the notification - would be available to these goods. They are made of plastic and are clearly not in those goods specified in any of the entries at 7 to 9.

Same Court & Year Customs Excise and Service Tax Appellate Tribunal CESTAT Mumb... Same Parties Express Industries vs Commissioner of Customs Same Subject Land Acquisition Same Judge S T Gowri, G Srinivasan