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TMI Blog1993 (7) TMI 209X X X X Extracts X X X X X X X X Extracts X X X X ..... fy identical goods under 85.29 after due consideration in the case of M/s. UMS Radio Factory and therefore, the adjudicating authority in the present case should have also adopted the same classification. It was urged that in respect of identical goods there cannot be two divergent opinions between two neighbouring Collectorates, viz. Collectorate at Coimbatore taking a view on the question of classification in favour of the assessee while the Madurai Collectorate taking a contrary view in favour of the revenue. It was submitted that since there are two divergent opinions among two neighbouring Collectorates and inasmuch as a manufacturer manufacturing identical goods at Coimbatore is already enjoying the benefit of having his goods classified under 85.29, on prima facie ground the same benefit should be extended to the petitioner as well. It was submitted that the view adopted by the Madurai Collectorate would prejudicially affect the rights and interests of the petitioner and the petitioner would suffer irreparable loss and injury on grounds of discriminatory treatment meted out to two manufacturers similarly and equally placed. Balance of convenience also in the above factual ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opposite view that will be taken in places like Maharashtra and Haryana. If there is any difficulty which the excise authorities in any particular State feel about any particular notification or a provision of law as regards interpretation, it would be advisable to have the same interpretation all over India and to seek directions from the Central Board so that the same interpretation, whether right or wrong, is supplied all over the country and situation like the present one where the job working factories in Haryana and Maharashtra are at an advantage as compared to similar factories in the State of Gujarat, may be avoided." Therefore, in the facts and circumstances stated above and following the ratio of the Division Bench of the Gujarat High Court we hold that the petitioner cannot be discriminated against in the matter of classification and therefore, on a prima facie view we hold that the petitioner is entitled to the grant of waiver of pre-deposit of duty, and also stay of recovery of the duty, pending appeal and we order accordingly. We make it clear that this is only a prima facie view for a limited purpose of stay application and the issue will have to be finally decided ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wrong classification has been done by one authority, the same cannot be taken to be a cause for giving a relief to another party. With respect, therefore, I observe that in the facts of this case the ratio of the judgment of the Hon'ble High Court is distinguishable. I, therefore, hold that no prima facie case has been made out for hardship and for that reason I order that the applicants should pre-deposit the entire duty demanded. Since I differ from the view taken by learned Member (Judicial), the date before which the pre-deposit should be made will be decided after the order by the third Member. Dated : 10-8-1993 Sd/- (V.P. Gulati) Member (T) POINT OF DIFFERENCE Whether in the facts and circumstances of the case the petitioner is entitled to the grant of waiver of pre-deposit of duty and also stay of recovery of the duty pending appeal, as held by Member (Judicial) for the reasons recorded by him, or no prima facie case has been made out for hardship and for that reason the applicants should pre-deposit the entire duty as held by Member (Technical) for the reasons recorded by him. Sd/- (S. Kalyanam) Member (J) Sd/- (V.P. Gulati) Member (T) 7 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case. Member (Judicial) has not looked into the prima facie merits of the case and has only allowed on the basis of the judgment of the Hon'ble Gujarat High Court in the case of Anup Engineering. For the proper appreciation of the position, Heading 85.28 is reproduced below :- 85.28 8528.00 Television receivers (including video monitors and video projectors), whether or not combined, in the same housing, with radio-broadcast receivers or sound or video recording or reproducing apparatus. Headings 85.28 and 85.29 have to be read together as 85.29 will only apply if the TV booster can be treated as a suitable part used solely or principally with the TV set whereas Member (Technical) has taken a view that it falls under Heading 85.43 which is electrical machines and apparatus having individual functions not specifically included elsewhere in this Chapter. The issue whether it falls under heading of the other heading is contentious and arguable. 11. Hon'ble Gujarat High Court in the case of M/s. Anup Engineering Ltd. had held as under :- "Before we leave these matters, we want to point out the extreme hardship which would be caused to the industrialists in a place like ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... attempted to be imported or are brought within the Indian customs waters for the purpose of being imported contrary to any provision imposed by or under Customs Act, 1962, or any other law for the time being in force. Neither the customs authorities nor the Chief Controller of Imports and Exports made any public notification that such an item cannot be imported by REP licence endorsed under 1977-78 Policy. An importer is entitled to know where his right and obligation stand under the licence. It involves international trade and before the importer can enter into a contract or open a letter of credit he must know the exact position regarding the import of the particular item. If the policy interpretation and the stand of the department changed with the change in the incumbent in the post of Collector of Customs there will be utter chaos and confusion. What is permitted to be imported by one Collector on an iterpretation of the licence and the relevant rules and notification is not permitted by the successor-in-office on an another interpretation on the same set of facts. This will create an atmosphere of uncertainty and insecurity to the REP licence holder or the transferees thereof ..... X X X X Extracts X X X X X X X X Extracts X X X X
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