2013 (5) TMI 792 - CGOVT - Customs

Classification of goods - Classification under Heading 7321 or 7323 of drawback schedule - exporter has not given the certificate of EPCH/MHSC on the body of Shipping Bills under which goods were exported as required under Circular No. 56/99-Cus., dated 26-8-1999 - Held that - Rejection of EPCH certificate can be done only after approval of jurisdictional Commissioner and after discussion with the certificate issuing authority. - In C.B.E. & C. Circular No. 3/10-Cus., dated 12-2-2010 it is clearly stipulated that assessing authorities should normally accept the certificates issued by Development Commissioner (Handicraft)/EPCH and a decision to reject the said certificate should be taken only with the approval of the Commissioner of Customs and Central Excise and after discussion with the certificate issuing authority. The original authority was directed to comply with these C.B.E. & C. instruction in GOI Revision Order No. 37/11-Cus., dated 22-2-2011. The adjudicating authority has neither referred the matter to Commissioner nor taken his approval and discussed the case with certificate issuing authority despite the specific direction on remand order. The reasoning taken by adjudicating authority is legally not tenable since this C.B.E. & C. Circular talk of certificate and not certification on shipping bill. The adjudicating authority has failed to comply with the direction of higher authority and thus did not follow the well settled principles of judicial discipline. Since the procedure laid down in C.B.E. & C. Circular No. 3/10-Cus., dated 12-2-2010 was not followed, Assistant Commissioner, Customs would have not rejected the said certificates on his own. As such Commissioner (Appeals) has rightly accepted the certificate of EPCH and held the classification under Sl. No. 7326 of DBK Schedule - Decided against Revenue.

Issues Involved:
1. Classification of the exported goods (Iron Fire Pit).
2. Validity and acceptance of certificates issued by the Export Promotion Council for Handicrafts (EPCH).
3. Compliance with procedural requirements for claiming duty drawback.
4. Examination of the manufacturing process to determine if the goods qualify as handicrafts.
5. Adherence to directives and circulars issued by the Central Board of Excise and Customs (C.B.E. & C.).
6. Remand order compliance and procedural fairness.

Issue-wise Detailed Analysis:

1. Classification of the Exported Goods (Iron Fire Pit):
The primary issue revolves around the correct classification of the exported Iron Fire Pit. The Assistant Commissioner initially classified the goods under Heading 7321 (non-electric domestic appliances) instead of Heading 7323 (household articles) as claimed by the exporter. The Commissioner (Appeals) later reclassified the goods under Heading 7326 as handicrafts. The adjudicating authority and the Commissioner (Appeals) provided differing interpretations of the appropriate classification based on the nature and use of the goods.

2. Validity and Acceptance of EPCH Certificates:
The department argued that the exporter failed to provide the EPCH certificate on the shipping bills at the time of export, as required by Circular No. 56/99-Cus. The Commissioner (Appeals) and subsequent judgments emphasized that certificates issued by EPCH should generally be accepted unless rejected with the approval of the Commissioner and after discussions with the certificate-issuing authority, as per Circular No. 3/2010-Cus. The original adjudicating authority's unilateral rejection of the certificates without following these procedures was deemed inappropriate.

3. Compliance with Procedural Requirements for Claiming Duty Drawback:
The department contended that the absence of the EPCH certificate on the shipping bills at the time of export invalidated the claim for a higher duty drawback rate. The respondent argued that the department failed to draw samples as mandated by Circular No. 34/95-Cus. for shipments with a drawback claim exceeding Rs. 1 lakh. The Commissioner (Appeals) and subsequent judgments highlighted that the procedural lapse by the department in not drawing samples could not be used to deny the drawback claim.

4. Examination of the Manufacturing Process to Determine if the Goods Qualify as Handicrafts:
The department argued that the manufacturing process involved significant use of machinery, which disqualified the goods from being classified as handicrafts. The respondent provided a Chartered Engineer's certificate stating that major parts of the manufacturing process were done by hand. The Commissioner (Appeals) and subsequent judgments accepted this certificate as corroborative evidence, supporting the classification of the goods as handicrafts under Heading 7326.

5. Adherence to Directives and Circulars Issued by C.B.E. & C.:
The judgments emphasized the binding nature of C.B.E. & C. circulars, particularly Circular No. 3/2010-Cus., which mandates the acceptance of EPCH certificates unless rejected with the Commissioner's approval and after discussions with the certificate-issuing authority. The original adjudicating authority's failure to comply with these directives was a significant procedural lapse.

6. Remand Order Compliance and Procedural Fairness:
The case was remanded by the Government of India for de novo adjudication with specific instructions to follow C.B.E. & C. Circular No. 3/2010-Cus. and to consider the EPCH certificates. The original adjudicating authority's failure to comply with these instructions and to seek the Commissioner's approval before rejecting the certificates was highlighted as a breach of procedural fairness. The Commissioner (Appeals) correctly set aside the de novo order for not adhering to the remand instructions.

Conclusion:
The Government upheld the Commissioner (Appeals)' order, classifying the goods under Heading 7326 as handicrafts and rejecting the department's revision application. The judgments emphasized the importance of adhering to procedural requirements, the binding nature of C.B.E. & C. circulars, and the need for fair and transparent adjudication processes. The procedural lapses by the department, particularly in rejecting the EPCH certificates without following the mandated procedures, were critical factors in the final decision.

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