Collector of Customs Vs. Rifox Engg. (India) Pvt. Ltd. - Court Judgment

Excerpt:
1. in this appeal filed by the revenue, the order passed by the addl.collector of customs, bombay, dated 27-2-1992 is under challenge. there were two issues involved in the matter. the first related to the thickness of the sheets imported and the other related to the weight of the consignment. on examination of the goods, it was found that thickness of the sheet was 1.5 mm. the exemption notification provided exemption to the stainless steel, plates, sheets and strips of thickness of 16 b.g. (birmingham gauge) or more. the 16 b.g. was converted into 1.58 mm and it was alleged that as the thickness was only 1.5 mm, it was less than 1.58 mm equivalent to 16 b.g. insofar as the weight was concerned, it was found that the declared weight was 1992 kgs. while on actual weighment, the goods weighed 2120 kgs. thus there was an excess of 128 kgs. the adjudicating authority while demanding duty on the actual excess weight ordered for the finalisation of the assessment without ordering any confiscation or penal action.with regard to thickness, he referred to the definition of the plates and sheets under the explanation provided in the notification no.150/81-cus., dated 25-5-1981 as amended. he observed that there was an inconsistency in the explanation relating to plates and sheets and the description given in the table annexed to that notification. he held that for this reason, the benefit of notification could not be denied to the importer.2. we have heard shri a.k. agarwal, sdr for the appellant revenue. shri s.n. purandare, manager (c ex. and customs) appeared for the respondents m/s. rifox engg. (india) pvt. ltd. 3. we have carefully considered the matter and have given our due thought to the submissions made by both the sides.4. the declared weight of the consignment of avesta sheets (coil form) grade 2205 was 1992 kgs. net. the gross weight was declared in the b/e as 2180 kgs. on examination, no difference was found in the gross weight, however, the actual weight was found to be 2120 kgs., excess by 128 kgs. we find that no show cause notice was issued and the goods were assessed on the basis of the actual weight found on examination.the adjudicating authority had observed that there was no case for confiscation and penal action. he also observed that the purchaser has asked for supply of 1.6 mm sheet which had been supplied taking into account the tolerance limit internationally accepted in the trade circles of stainless steel items.5. as there was no discrepancy insofar as the gross weight is concerned and as the duty had been demanded and paid on the actual weight, insofar as the discrepancy in the weight is concerned, we do not find any ground to interfere with the view taken by the adjudicating authority, the addl. collector of customs, bombay.6. insofar as the thickness is concerned, we find that in the table annexed to notification no. 150/81-cus., dated 25-5-1981 as amended, the concessional rate of customs duty had been provided for stainless steel, plates, sheets and strips of a thickness of 16 b.g. or more. it had been explained that b.g. means birmingham gauge which is used in measuring thickness. we find that there is no finding that the thickness of the sheets imported was not of 16 b.g. or more. the adjudicating authority had observed that when converted into millimeters, 16 b.g. was equivalent to 1.58 mm while the actual thickness of the goods imported was 1.5 mm. he referred to the definition of plates and sheets as per the explanation (b) which is that the thickness would not be less than 1.5 mm. we find that the sheet of 1.5 mm is covered by this definition of the sheet as given in the notification as only sheets of less than 1.5 mm thickness are excluded from that definition. the adjudicating authority had observed that while the equivalent of 16 b.g. was 1.58 mm, in the explanation, the reference is to 1.5 mm. while we consider that the thickness of not less than 1.5 mm has been referred to for exclusion from the definition of plate, sheet, we find that no case had been made out that the goods were not covered by the description as in the table or explained in the explanation.7. in the grounds of appeal, the revenue had contended that since the thickness of the stainless steel sheet was 1.5 mm, the benefit of notification was not available on the ground that the benefit of concessional rate of duty to stainless steel sheets having thickness 16 b.g. or more i.e. 1.5 mm or more was alone available. in this connection, we find that while discussing the gauge number in chapter 92 in the publication united states steel, it has been mentioned as under :- "the danger of confusion in the use of gauge numbers to indicate thickness and diameters must be emphasized. this danger is present in domestic as well as in foreign trade, and can be avoided by specifying thickness or diameter in inches, centimeters, or millimeters, or in weights per square foot or per square meter, or by giving other equivalents in absolute units. this latter method of specification in absolute units has become general for most coated and un-coated flat-rolled products, and is gaining favour in specifications for wire sizes." 8. as there is no finding that the thickness was not covered by the description and as the adjudicating authority had already referred to the definition of sheets as contained in the explanation under the notification referred to above we do not find any ground to interfere with the order already passed.9. taking all the relevant considerations into account, we do not find any merit in this appeal and the same is rejected. the cross-objections filed by the respondent are also disposed of in the above terms.

Judgment:
1. In this appeal filed by the Revenue, the order passed by the Addl.

Collector of Customs, Bombay, dated 27-2-1992 is under challenge. There were two issues involved in the matter. The first related to the thickness of the sheets imported and the other related to the weight of the consignment. On examination of the goods, it was found that thickness of the sheet was 1.5 mm. The exemption notification provided exemption to the stainless steel, plates, sheets and strips of thickness of 16 B.G. (Birmingham Gauge) or more. The 16 B.G. was converted into 1.58 mm and it was alleged that as the thickness was only 1.5 mm, it was less than 1.58 mm equivalent to 16 B.G. Insofar as the weight was concerned, it was found that the declared weight was 1992 kgs. while on actual weighment, the goods weighed 2120 kgs. Thus there was an excess of 128 kgs. The adjudicating authority while demanding duty on the actual excess weight ordered for the finalisation of the assessment without ordering any confiscation or penal action.

With regard to thickness, he referred to the definition of the plates and sheets under the explanation provided in the Notification No.150/81-Cus., dated 25-5-1981 as amended. He observed that there was an inconsistency in the explanation relating to plates and sheets and the description given in the Table annexed to that Notification. He held that for this reason, the benefit of Notification could not be denied to the importer.

2. We have heard Shri A.K. Agarwal, SDR for the appellant Revenue. Shri S.N. Purandare, Manager (C Ex. and Customs) appeared for the respondents M/s. Rifox Engg. (India) Pvt. Ltd. 3. We have carefully considered the matter and have given our due thought to the submissions made by both the sides.

4. The declared weight of the consignment of Avesta sheets (coil form) grade 2205 was 1992 kgs. net. The gross weight was declared in the B/E as 2180 kgs. On examination, no difference was found in the gross weight, however, the actual weight was found to be 2120 kgs., excess by 128 kgs. We find that no show cause notice was issued and the goods were assessed on the basis of the actual weight found on examination.

The adjudicating authority had observed that there was no case for confiscation and penal action. He also observed that the purchaser has asked for supply of 1.6 mm sheet which had been supplied taking into account the tolerance limit internationally accepted in the trade circles of stainless steel items.

5. As there was no discrepancy insofar as the gross weight is concerned and as the duty had been demanded and paid on the actual weight, insofar as the discrepancy in the weight is concerned, we do not find any ground to interfere with the view taken by the adjudicating authority, the Addl. Collector of Customs, Bombay.

6. Insofar as the thickness is concerned, we find that in the table annexed to Notification No. 150/81-Cus., dated 25-5-1981 as amended, the concessional rate of customs duty had been provided for stainless steel, plates, sheets and strips of a thickness of 16 B.G. or more. It had been explained that B.G. means Birmingham Gauge which is used in measuring thickness. We find that there is no finding that the thickness of the sheets imported was not of 16 B.G. or more. The adjudicating authority had observed that when converted into millimeters, 16 B.G. was equivalent to 1.58 mm while the actual thickness of the goods imported was 1.5 mm. He referred to the definition of plates and sheets as per the explanation (b) which is that the thickness would not be less than 1.5 mm. We find that the sheet of 1.5 mm is covered by this definition of the sheet as given in the Notification as only sheets of less than 1.5 mm thickness are excluded from that definition. The adjudicating authority had observed that while the equivalent of 16 B.G. was 1.58 mm, in the explanation, the reference is to 1.5 mm. While we consider that the thickness of not less than 1.5 mm has been referred to for exclusion from the definition of plate, sheet, we find that no case had been made out that the goods were not covered by the description as in the Table or explained in the explanation.

7. In the grounds of appeal, the Revenue had contended that since the thickness of the stainless steel sheet was 1.5 mm, the benefit of Notification was not available on the ground that the benefit of concessional rate of duty to stainless steel sheets having thickness 16 B.G. or more i.e. 1.5 mm or more was alone available. In this connection, we find that while discussing the Gauge number in Chapter 92 in the Publication United States Steel, it has been mentioned as under :- "The danger of confusion in the use of gauge numbers to indicate thickness and diameters must be emphasized. This danger is present in domestic as well as in foreign trade, and can be avoided by specifying thickness or diameter in inches, centimeters, or millimeters, or in weights per square foot or per square meter, or by giving other equivalents in absolute units. This latter method of specification in absolute units has become general for most coated and un-coated flat-rolled products, and is gaining favour in specifications for wire sizes." 8. As there is no finding that the thickness was not covered by the description and as the adjudicating authority had already referred to the definition of sheets as contained in the explanation under the Notification referred to above we do not find any ground to interfere with the order already passed.

9. Taking all the relevant considerations into account, we do not find any merit in this appeal and the same is rejected. The cross-objections filed by the respondent are also disposed of in the above terms.