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TMI Blog1997 (3) TMI 238X X X X Extracts X X X X X X X X Extracts X X X X ..... 0A) of the said Tariff as Stainless Steel Sheets and as to whether they are entitled for the concessional rate of benefit in terms of Notification No. 118/65, dated 20-8-1965 as amended, which grants concessional rate of benefit to Cold Rolled hoops and strips of stainless steel of 250 mm width or more falling under Item 63(14) of ICT are exempted from the payment of (i) so much of that portion of customs duty leviable thereon under Indian Tariff Act, 1934 as an excess of 10% ad valorem where standard rate of duty is leviable and (ii) the whole of the duty of Customs leviable thereon under Indian Tariff Act, 1934 where the preferential rate of duty is leviable. 3. In the present case the Learned DR has prepared a chart setting out the appeal numbers, Bill Respondent, Bill of Entry No. Date, Description as per invoice/Bill of entry, Specification/Thinkness/Width. The same is annexed to this order as annexure. 4. The respondents/importers had preferred a refund claim on the ground that the goods are correctly classifiable under Item 63(14) of ICT. The refund claims were rejected on merits as well as on time bar as the claims had been preferred after the statutory period of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... produce the required finish and surface characteristics was also accepted by the Learned Collector. 5. The Revenue in these appeals are challenging these findings and are contending that the imported items are sheets in coils and the description in each of the Bill of Entry given squarely fit into the description of sheets . As the thickness is less than 1/8th of inch (3.17 mm) and more than 5" (127 mm) in width, the impugned goods had been supplied in sheets in coil form. In the invoice and Bills of Entry, the impugned goods were described as `Stainless Steel Sheets in Coil . It is stated that dimensions and size fit squarely into the description `sheets as per ICT 1934 read with Tariff Rule 1/34. It is stated that while deciding a similar case, the Hon ble Madras High Court on writ petition filed by the department, in the case of M/s. Prema Metal Works and Others discussed the issue at length and in detail and held that the dimension of strips and `sheets given in the ISI 1956-1962 (as amended) vary with the dimension given in the Brussels Nomenclature and the specifications of AISI. Thus even the specifications according to which the goods have been manufactured controver ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a view had been taken that heat resisting Steel Sheets in coils of 48" width is liable to duty under Item 63(14) of Indian Customs Tariff read with Customs Notification No. 118/65 (as amended) and not under Item 63(20A). He submits that this judgment is distinguishable in the light of Hon ble Supreme Court s judgment rendered in the case of Union of India v. Tata Iron and Steel Co. Ltd. as reported in 1978 (2) E.L.T. (J439), wherein the Hon ble Supreme Court had laid down that in the absence of statutory definition, whether the product can come under the description of `skelp or `strip , it would require some evidence to be taken as the level of the taxing authority provided however, there is an identifiable, uniform and determinate test by which `skelp can be properly distinguished from `strip . The absence of any identifiable standards would naturally give rise to scope of arbitrary assessment at the hands of the different taxing authorities. The Learned DR pointed out that the Brussels Nomenclature had indicated the width to be not more than 500 mm for considering it as `strip while ISI states that it could be of a width more than 600 mm. He submitted that in view of the Hon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rging of iron or steel not elsewhere specified falling under TI 26AA(ia) before 1-8-1983 and under TI 25(8) after 1-8-1983 and then under CETA, 7208.00. 8. The Learned DR also submits that the claims filed by the respondents were time barred as having been filed beyond the statutory limit. The Hon ble Supreme Court in the Miles India Ltd. v. Assistant Collector of Customs, as reported in 1987 (30) E.L.T. 641 held that statutory authorities are bound by the limit of statutory period and therefore, the direction given by the Madras High Court to consider their claim is beyond jurisdiction and against the law laid down by the Hon ble Supreme Court. He submits that the Hon ble Supreme Court had clearly clarified in the case of Union of India v. Kirloskar Pneumatic Company, as reported in 1996 (84) E.L.T. 401 that High Court under writ jurisdiction cannot direct the Customs authorities to ignore the time limit prescribed under Section 27 of the Customs Act even though High Court itself may not be bound by the time limit of the said Section. In fact the Learned DR submits that the directions given by the Madras High Court in the present appeals to consider the claim of the respondents ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in the Bills of Entry. It states that the item is a heat resistance steel sheets in coils and therefore, they cannot be classified as `stainless steel sheets under Item 63(20A) and are rightly classifiable under Item 63(14). He also pointed out that where there is a benefit of doubt then the same should go in the favour of assessee in view of the definition of these terms in the statute. He submitted that the Hon ble Supreme Court has referred to ISI Specifications in the case of Union of India v. Tata Iron and Steel Co. Ltd. as reported in 1978 (2) E.L.T. (J439) and in that of Collector of Customs v. Krishna Carbon Paper Co., as reported in 1988 (37) E.L.T. 480. He emphasised the need to apply the ISI Standard in the present case to determine the nature of the goods. The Learned Advocate also submitted that the Andhra High Court in the case of Venkateswara Stainless Steel Wire Industries v. Government of India and Others as reported in 1983 (14) E.L.T. 2217 dealt with the heat resistance stainless steel strips in coils of 48" width and held to be liable to duty under Item 63(14) of Indian Customs Tariff and granted the benefit. It is his submission that in this judgment the H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... equential refund benefit to the respondents. However, while he decided this case, the Collector had not taken notice of the Division Bench s judgment of the Madras High Court in the case of Prema Metal Works and Others. Before this Madras High Court, the importers were also parties. This Division Bench of Madras High Court had gone into all aspects of the matter which has been raised before the revisional authorities i.e. Government of India as well as the Collector, which has also been agitated before us. On a very detailed examination of the matter, and taking into consideration the law laid down by the Hon ble Supreme Court with regard to the manner in which an items is required to be classified, it has been now a settled law that the item is required to be classified in the manner it is understood in the trade and commercial usage; in the absence of any statutory definition. In this case the trade had understood the imported item as `stainless steel sheets . The importer s contention is for applying the ISI Specifications, and that the goods imported should be classified as `strips . While rejecting this contention, the Division Bench relied on the ruling of the Hon ble Supreme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gment in the writ petitions are set aside and the rules nisi are discharged. No costs. Leave to appeal refused. 14. In view of the categorical judgment rendered by the Division Bench, which was binding on the jurisdictional Collector (Appeals), we do not find any reason to differ from the same. It is to be observed that this Division Bench Judgment also overrules the single Judge judgment of the Andhra High Court referred to supra. The findings of this Division Bench of Madras High Court is required to be accepted by us in view of the findings based on commercial parlance test and also in view of settled law that ISI Specifications is only for maintaining the standards, which has since been reiterated and confirmed by the Hon ble Supreme Court time and again, and has also been referred to by the Tribunal in several judgments which have been cited by the Learned DR as noted in this order. 15. The Learned DR pointed out from the annexure pertaining to several Bills of Entry that few of the items would be covered within the term and meaning of `strips and the benefit could be granted. Although this is conceded by the Revenue however, on a different question raised before us, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... und that it is time barred", is valid in law. With respect we think that it is not. 7. In Collector of Central Excise, Chandigarh v. M/s. Doaba Co-operative Sugar Mills Ltd., Jalandhar [1988 (37) E.L.T. 478 = AIR 1988 S.C. 2052] this court had observed: 6. it appears that where the duty has been levied without the authority of law or without reference to any statutory authority or the specific provisions of the Act and the Rule framed thereunder have no application, the decision will be guided by the general law and the date of limitation would be the starting point when the mistake or the error comes to light. But in making claims for refund before the departmental authority, an assessee is bound within four corners of the Statute and the period of limitation prescribed in the Central Excise Act and the Rules framed thereunder must be adhered to. The authorities functioning under the Act are bound by the provisions of the Act. If the proceedings are taken under the Act by the department, the provisions of limitation prescribed in the Act will prevail. It may, however, be open to the department to initiate proceedings in the Civil Court for recovery of the amount due to the de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cept as provided in sub-section (2)". 10. According to these sub-sections, a claim for refund or an order of refund can be made only in accordance with the provisions of Section 27 which inter alia includes the period of limitation mentioned therein. Mr. Hidayatullah submitted that the period of limitation prescribed by Section 27 does not apply either to a suit filed by the importer or to a writ petition filed by him and that in such cases the period of limitation would be three years. Learned counsel refers to certain decisions of this Court to that effect. We shall assume for the purpose of this appeal that it is so, notwithstanding the fact that the said question is now pending before a larger Constitution Bench of nine Judges along with the issue relating to unjust enrichment. Yet the question is whether items permissible for the High Court to direct the authorities under the Act to act contrary to the aforesaid statutory provision. We do not think it is, even while acting under Article 226 of the Constitution. The power conferred by Article 226/227 is designed to effectuate the law, to enforce the Rule of law and to ensure that the several authorities and organs of the Stat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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