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TMI Blog1992 (8) TMI 156X X X X Extracts X X X X X X X X Extracts X X X X ..... he relevant entry of the customs tariff but claimed exemption from the additional duty of customs leviable under Section 3(1) of the Customs Tariff Act, 1975 (C.T. Act, in short). The relevant portion of the said section reads thus :- "3(1). Any article which is imported into India shall, in addition, be liable to a duty (hereafter in this section referred to as the additional duty) equal to the excise duty for the time being leviable on a like article if produced or manufactured in India and if such excise duty on a like article is leviable at any percentage of its value, the additional duty to which the imported article shall be so liable shall be calculated at that percentage of the value of the imported article. Explanation. - In this section, the expression "the excise duty for the time being leviable on a like article if produced or manufactured in India" means the excise duty for the time being in force which would be leviable on a like article if produced or manufactured in India, or, if a like article is not so produced or manufactured, which would be leviable on the class or description of articles to which the imported article belongs, and where such duty is levia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ., dated 1-3-1984. 7. However, the Section 8 notifications referred to earlier provide a further concession. Notification No. 93/76-C.E. is relevant for the purposes of the first appeal while Notification No. 63/85-C.E. is relevant for the purposes of the second. The notifications are somewhat differently worded. It is, however, common ground that the two notifications are worded alike in all respects material for the purposes of the present appeals. It is therefore sufficient if the terms of Notification No. 63/85, dated 17-3-1985 are extracted here. It reads : EFFECTIVE RATES 63/85-C.E., dated 17-3-1985 "Effective rates of duty on Refrigerators, Evaporative type of coolers, Air-conditioning appliances, etc. and parts thereof prescribed. In exercise of the powers conferred by sub-rule (1) of Rule 8 of the Central Excise Rules, 1944, the Central Government hereby exempts goods of the description specified in column (3) of the Table hereto annexed and falling under the sub-item specified in the corresponding entry in column (2) of the said Table, of Item No. 29A of the First Schedule to the Central Excises and Salt Act, 1944 (1 of 1944), from so much of the duty of excise levia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ansion valve and solenoid valves) and pressure switches. (vii) Overload protection/thermal relay. (viii) Cabinet. Eighty per cent ad valorem. 5. (3) Parts of refrigerating and air-conditioning appliances and machinery, all sorts, other than those specified in S. No. 4 above. Nil 6. (3) Parts of refrigerating machinery as specified in S. No. 4 above and required for use in a cold storage for storage and preservation of the foodstuffs specified in paragraph 3 of the Cold Storage Order, 1964 dated the 3rd September, 1964. Twenty five per cent ad valorem. If - (i) the said parts are used in the said cold storage; and (ii) the procedure specified in Chapter X of the Central Excise Rules, 1944 is followed. 7. (3) Parts of refrigerating appliances and machinery of the description specified in S. No. 4 above and required for use in the manufacture of - wagons for transport of (a) refrigerating vans, including perishables, food and dairy products; (b) ships, including frigates where provision is made for the preservation of perishable goods in transport. Twenty five per cent ad valorem. If- (i) the said parts are so used; and (ii) th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rules, 1944 is followed. Here parties are agreed that the chillers imported by the assessee are used in a factory - vide item (xiii) - and that, therefore the first of these conditions has been fulfilled. 9. The assessee's claim for concession has, however, been rejected not on the ground that the second of the above conditions has not been fulfilled but on the broader ground that the procedure of Chapter X is designed to facilitate clearances only for the purposes of central excise and that the said procedure cannot be fulfilled at all in the case of an importer. In other words, the view was that the second condition was such that it was attracted only for purposes of central excise and could not at all be invoked to claim a concession in CVD. It is the correctness or otherwise of this conclusion that has to be determined in these appeals. 10. This takes us to a consideration of the provisions of Chapter X of the Central Excise Rules, 1944. This Chapter provides for a "remission of (central excise) duty on goods used for special industrial purposes". Rule 192 is the principal rule in this Chapter which reads thus :- "Rule 192 - Application for concession. - Where th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for our present purposes. Though the latter part of Rule 192 also enables an applicant, where necessary, to obtain a licence in Form L-6 and also prescribes a form of application (Form AL-6) for grant of duty concession on goods purchased for the process of manufacture during the period of currency of the licence, the opening words of the rule are very wide and general. The benefit of Chapter X will no doubt generally be claimed by a manufacturer in which event he will have to make the application, get the licence and give the assurances, bond or guarantee required by the rules but it can also be claimed by other persons. The language of the rule applies to any person, not necessarily a manufacturer, wishing to obtain remission of duty sanctioned by a notification under Rule 8 on excisable goods in a specified industrial process. The industrial processes specified in Column (2) are also not very complicated or elaborate in every case. Even a purchase by a person for use of the part in question in a factory could be covered by the scope of Column (2). Such a person has only to make an application setting out the quantity of goods required as well as the manner and purpose of their u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... andates that the CVD will be equal to the excise duty for the time being leviable on a like article if produced or manufactured in India. In other words, we have to forget that the goods are imported, imagine that the importer had manufactured the goods in India and determine the amount of excise duty that he would have been called upon to pay in that event. Thus, if the person using the goods is entitled to the remission, the importer will be entitled to say that the CVD should only be the amount of concessional duty and, if he has paid more, will be entitled to ask for a refund. In our opinion, the Tribunal was in error in holding that the assessees could not get a refund because the procedure of Chapter X of the rules is inapplicable to importers as such. 12. Learned counsel for the assessee however contended that, even if the conclusion of the Tribunal that the procedure of Chapter X of the rules cannot be complied with in such cases is correct, the exemption under the notification cannot be denied. He relied, in support of this submission on a letter of the Central Board of Excise & Customs (F. No. 332/65/86 TRU, dated 27-7-1987) the relevant portion of which runs as und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry was eligible for the concession under Rule 192. The benefit of such concession to the assessee must therefore be held to have been rightly denied in that appeal. 14. Shri A.K. Ganguli, on behalf of the Revenue, raises a contention that, even assuming that the goods fulfil the conditions of the notification referred to earlier, the CVD rate applicable would be 80% by virtue of the Explanation to Section 3(1) of the C.T. Act. He submits that the goods imported by the assessee are "parts of refrigerating and air-conditioning equipment". They are chargeable at different rates of duty accordingly as they fall under item with Serial No. 4 (80%) or that with Serial No. 5 (Nil) or that with Serial No. 6 (20%) or that with Serial Nos. 7 & 8 (25%). In such a situation, he says, the provisions of the Explanation to Section 3(1) are attracted and hence the assessee will be liable to duty at the highest rate of 80%. We are loth to permit the Department to raise at this stage a fresh contention not taken before the Tribunal or earlier. That apart, we do not think it is well-founded. It is no doubt true that Item 29A of the Schedule to the C.E. Act is very wide and covers various article ..... X X X X Extracts X X X X X X X X Extracts X X X X
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