Commissioner of Customs Vs. Sudharsan Pine Products Ltd. - Court Judgment

Excerpt:
1. these are nine revenue appeals in which they had filed an application for stay of operation of the order passed by the commissioner (appeals).2. we have heard both sides in the matter and as the issue lies in the short compass and the issue has already been decided by the tribunal in the case of dujodwala products ltd. as reported in 1997 (96) e.l.t. 195 (tribunal) and pertaining to oleo pine resin is extracted without aid of power and its classification having been settled under sub-heading 1301.90 of central excise tariff for the purpose of additional duty.hence, the appeals are taken up for hearing by rejecting the stay application.3. the assessee imported oleo pine resin, which they had claimed to be manufactured without aid of power. in this regard, they had filed certificates from the manufacturer/suppliers. the lower authority had not taken into consideration this evidence, therefore, the commissioner (appeals) noted that the suppliers have given certificates in unequivocal terms stating that oleo pine resin is extracted from pine trees and that no power is used at any stage for this process. he also noted that the importers had submitted these certificates, when the goods were entered for clearance. this evidence has neither been taken cognisance nor controverted by the lower authority, while rejecting the assessee's claim, therefore, noted this and the commissioner held that the assistant commissioner had adduced legally untenable and flimsy grounds in his rejection order. he also noted that as the suppliers had certified that the oleo pine resin is made without the aid of power, therefore, classification under sub-heading 1301.90 is to be applied.in this regard, he has taken into consideration of the judgment of tribunal cited above for application.4. the learned dr submits that the grounds made out by the revenue in the appeal is that section 3(1) of the customs tariff act is relevant, which says that rate of duty is leviable at different rate and the highest duty shall be admissible. it is stated that the filtered oleo pine resin is chargeable to two different rates 'nil' and 10% depending on use of power and by virtue of explanation to section 3(1) of customs tariff act, applicable rate would be at 10%.5. the learned senior advocate submits that the rate is subject to the manufacture i.e. with power or without power and as in this case evidence has been adduced to the effect that the item has been manufactured without use of power, the said item is rightly classifiable under sub-heading 1301.90 carries 'nil' rate of duty and in this regard, he submits that section 3(1) is not relevant and such classification is on the basis of use of power. he also submits that the issue having been decided in the case of dujodivala products ltd. cited supra, the question of further re-examining or taking a different view in the matter does not arise, as the ground raised by the revenue pertaining to explanation to section 3(1) of customs tariff act, has already been examined by the tribunal. he, therefore, submits that the appeal is required to be dismissed.6. on a careful consideration of the submissions on both sides, we notice that the commissioner has considered the certificates produced by the suppliers, which had been ignored by the assistant commissioner.the certificates of suppliers clearly indicated that the item had been manufactured without use of power. the classification arrived at 1301.90 by the commissioner (appeals) in terms of the claim cannot be faulted. further, the grounds raised in the appeal pertaining to applicability of explanation to section 3(1) has already been answered by the tribunal in the cited judgment. the department also seeks to distinguish this judgment on the ground that it does not deal with filtered resin powder. we find that the form in which the resin is imported i.e. powder or otherwise is not material to the facts as long as the item remains the same. therefore, on this ground alone, we cannot accept the department's plea that the aforesaid case law stands distinguished.7. in view of the points raised by the revenue has already been answered by the tribunal, therefore, the issue is fully covered and respectfully following the ratio of the cited judgment, all these appeals are dismissed, as there is no merit in the appeals.

Judgment:
1. These are nine revenue appeals in which they had filed an application for stay of operation of the order passed by the Commissioner (Appeals).

2. We have heard both sides in the matter and as the issue lies in the short compass and the issue has already been decided by the Tribunal in the case of Dujodwala Products Ltd. as reported in 1997 (96) E.L.T. 195 (Tribunal) and pertaining to Oleo Pine Resin is extracted without aid of power and its classification having been settled under sub-heading 1301.90 of Central Excise Tariff for the purpose of additional duty.

Hence, the appeals are taken up for hearing by rejecting the stay application.

3. The assessee imported oleo pine resin, which they had claimed to be manufactured without aid of power. In this regard, they had filed certificates from the manufacturer/suppliers. The lower authority had not taken into consideration this evidence, therefore, the Commissioner (Appeals) noted that the suppliers have given certificates in unequivocal terms stating that oleo pine resin is extracted from pine trees and that no power is used at any stage for this process. He also noted that the importers had submitted these certificates, when the goods were entered for clearance. This evidence has neither been taken cognisance nor controverted by the lower authority, while rejecting the assessee's claim, therefore, noted this and the Commissioner held that the Assistant Commissioner had adduced legally untenable and flimsy grounds in his rejection order. He also noted that as the suppliers had certified that the oleo pine resin is made without the aid of power, therefore, classification under sub-heading 1301.90 is to be applied.

In this regard, he has taken into consideration of the judgment of Tribunal cited above for application.

4. The learned DR submits that the grounds made out by the Revenue in the appeal is that Section 3(1) of the Customs Tariff Act is relevant, which says that rate of duty is leviable at different rate and the highest duty shall be admissible. It is stated that the filtered oleo pine resin is chargeable to two different rates 'nil' and 10% depending on use of power and by virtue of Explanation to Section 3(1) of Customs Tariff Act, applicable rate would be at 10%.

5. The learned Senior Advocate submits that the rate is subject to the manufacture i.e. with power or without power and as in this case evidence has been adduced to the effect that the item has been manufactured without use of power, the said item is rightly classifiable under sub-heading 1301.90 carries 'nil' rate of duty and in this regard, he submits that Section 3(1) is not relevant and such classification is on the basis of use of power. He also submits that the issue having been decided in the case of Dujodivala Products Ltd. cited supra, the question of further re-examining or taking a different view in the matter does not arise, as the ground raised by the revenue pertaining to Explanation to Section 3(1) of Customs Tariff Act, has already been examined by the Tribunal. He, therefore, submits that the appeal is required to be dismissed.

6. On a careful consideration of the submissions on both sides, we notice that the Commissioner has considered the certificates produced by the suppliers, which had been ignored by the Assistant Commissioner.

The certificates of suppliers clearly indicated that the item had been manufactured without use of power. The classification arrived at 1301.90 by the Commissioner (Appeals) in terms of the claim cannot be faulted. Further, the grounds raised in the appeal pertaining to applicability of Explanation to Section 3(1) has already been answered by the Tribunal in the cited judgment. The department also seeks to distinguish this judgment on the ground that it does not deal with filtered resin powder. We find that the form in which the resin is imported i.e. powder or otherwise is not material to the facts as long as the item remains the same. Therefore, on this ground alone, we cannot accept the department's plea that the aforesaid case law stands distinguished.

7. In view of the points raised by the revenue has already been answered by the Tribunal, therefore, the issue is fully covered and respectfully following the ratio of the cited judgment, all these appeals are dismissed, as there is no merit in the appeals.