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TMI Blog1991 (5) TMI 171X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the main appeals had been filed within limitation and following the general practice in such cases, the delay in filing the supplementary appeals is condoned. 2. The appeal of M/s. Raj Industries is against the Order No. 1784/89 BCH dated 17-11-89 and the appeal of M/s. Rama Krishna Wire Works is against the Order No. 1785/89 BCH dated 17-11-89 passed by the Collector of Customs (Appeals), Bombay. The facts relating to M/s. Raj Industries are as follows : 3. The appellants filed a refund claim to the Assistant Collector of Customs (Refunds), Bombay, claiming exemption of duty on the goods Polyester Metallised Film under Notification No. 71/71-C.E., dated 29-5-1971 in respect of additional duty of Customs (CVD). This was rejected by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bing their product. He also noted that the import consisted of various consignments and none of them have been subjected to test which was necessary because Notification 71/71 can be applied only to rigid plastic boards, sheetings, sheets and film whether laminated or not other than those manufactured from polyvinyl chloride. At the time of filing Bill of Entry, these was no indication of such a claim for Notification 71/71 so that the Assessing Officer could have, on his own, got the imported material tested. Therefore, he upheld the Assistant Collector's order. 4. In the case of appellants, M/s. Rama Krishna Wire Works, the import was also of similar described material, i.e., Polyester Metallised Film and covered by 16 Bills of Entry imp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing identical to that which was taken by him in the case of the appeal of M/s. Raj Industries (supra). 5. The Ld. Counsel, Sh. Jitender Singh appearing for the appellants, submitted that the eligibility to Polyester Metallised Film to the exemption for the purposes of CVD is covered by the Supreme Court decision in the case of 1989 (43) E.L.T. 811 in the case of Collector of Customs v. K. Mohan & Co. Exports wherein the Supreme Court held that plastic films are distinct and separate from plastic sheets or plastic foils and that Polyester Metallised Films will be entitled to exemption under Notification 228/76. The Ld. Counsel, further, submitted that the Collector (Appeal's) order had not considered the claim for exemption under Notificati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d at the time of import for ascertaining whether they are rigid or flexible and as such as the order of the lower authorities was correct in law. 7. The submissions made by both the parties, have been carefully considered. The question is whether the goods imported, namely. Polyester Metallised Film of various gauges, are eligible for exemption from CVD in terms of Notification 71/71-C.E. and Notification 228/76. It would appear from the first Order-in-Original passed by the Assistant Collector of Customs (Refunds) in the case of M/s. Rama Krishna Wire Works that their claim for refund was based saying that the goods were eligible for exemption under Notification 71/71. That this was so, is, further, confirmed by the order of the Collector ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e by the Department. It is also not the case that they have led any evidence alongwith their refund claim to indicate that the goods imported are such as to qualify for exemption under Notification 71/71. It is, further, noted that appellants, Rama Krishna Wire Works, are on record as having submitted during the hearing before the Collector (Appeals) that they are not pressing their claim for exemption under Notification 228/76. In such a view of the matter, there is no reason to interfere with the order passed by the lower authorities because the eligibility for exemption under Notification 71/71 is not supported by test result or by factual data regarding whether the goods were flexible or rigid, and because the claim for Notification 228 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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