2009 (9) TMI 335 - HC - Customs

Notification No. 39/90-Cus.- Classification- The petitioner imported the said goods specifically against four REP Licences. According to the petitioner, the entry at sr. no. 243 of Appendix 3A allows import of Glycolethers . Ethyl/Butyl Glycol are classified for assessment under Customs Tariff Heading 2909.43. The respondents, however, after allowing earlier clearance under Tariff Heading 2909.43 sought to classify the goods under Tariff Hearing 29.05. According to the petitioner, though Ethyl/Butyl Glycol is specifically classifiable under Tariff Heading 2909.43 and this fact is accepted by the respondents, nevertheless the respondents first suggested classification under Tariff Heading 29.05 and later accepted classification under Tariff Heading 2909.43. Notification no. 39/90 under which the exemption is granted, Butyl Glycol is wrongly classified under Tariff Heading 29.05. According to the petitioner, the respondents have accepted the typographical error and therefore have been granting duty concession under the notification to several importers under sr. no.8 of the said Notification no. 39/90 dated 20th March 1990 as amended by Notification no. 60/91 dated 25th July 1991. In spite of the same, the petitioner has been denied the concessional rate of duty under sr. no. 8 of the said notification by wrongly classifying it under Tariff Heading 29.05. According to the petitioner, the respondents are refusing the concessional duty at sr. no.8 and are seeking to clear additional duty at sr. no. 8 of the same notification. Held that- We have perused the relevant notification. Though the goods at column 3 of the table have been referred to as Ethyl Glycol and Butyl Glycol, insofar as column 2 are concerned they are shown under Tariff Heading 29.05. In the first part of the notification, it is mentioned that the Central Government in public interest exempts the goods specified under column 3 of the table. It is therefore clear that what is exempted was Ethyl Glycol and Butyl Glycol. The affidavits of the expert of the respondents would themselves show that they fall under Tariff Heading 2909.43. Clearly therefore the entry under column no. 2 of Tariff Heading 29.05 is a typographical error and the petitioner cannot be denied the benefit solely on that ground. In the light of the above, the petition is made absolute in terms of the interim order already passed in this petition.

Summary

Issues: Classification of imported goods under Customs Tariff Headings, Concessional duty under Notification no. 39/90, Benefit of concessional duty refused, Typographical error in classification, Exemption of goods under the notification.

Classification of imported goods under Customs Tariff Headings:
The petitioner imported Ethyl/Butyl Glycol classified under Customs Tariff Heading 2909.43, seeking concessional duty under Notification no. 39/90. The respondents initially suggested classification under Tariff Heading 29.05 but later accepted classification under 2909.43. The petitioner argued that the goods should be classified under 2909.43 and not 29.05, as they contain ether and alcohol function groups, falling under 2909.43. The court agreed that the goods were wrongly classified under 29.05 due to a typographical error, and the petitioner should not be denied the benefit based on this error.

Concessional duty under Notification no. 39/90:
The petitioner specifically imported Ethyl/Butyl Glycol against four REP Licences, seeking concessional duty under sr. no. 8 of Notification no. 39/90. The respondents wrongly classified Butyl Glycol under Tariff Heading 29.05, denying the concessional duty under sr. no. 8. Despite accepting the typographical error, the respondents refused to grant the concessional rate of duty under sr. no. 8, leading to the petitioner's petition to claim the benefit.

Benefit of concessional duty refused:
The petitioner filed two bills of entry for clearance of the goods for home consumption, seeking the benefit of concessional duty. However, the respondents refused to extend the benefit, prompting the petitioner to file a petition seeking the concessional duty under the notification.

Typographical error in classification:
The court noted that the goods, Ethyl/Butyl Glycol, were wrongly classified under Tariff Heading 29.05, while they should have been classified under 2909.43 due to containing ether and alcohol function groups. The court emphasized that the typographical error in classification should not deprive the petitioner of the benefit entitled under the notification.

Exemption of goods under the notification:
The court analyzed the relevant notification and affirmed that Ethyl Glycol and Butyl Glycol were exempted goods under the notification, despite being shown under Tariff Heading 29.05 in column 2. The court clarified that the goods fell under Tariff Heading 2909.43 based on expert affidavits, highlighting that the entry under 29.05 was a typographical error. Consequently, the court made the petition absolute in terms of the interim order, granting the petitioner the benefit of the concessional duty under the notification.