9911796707
TMI Blog1997 (6) TMI 127X X X X Extracts X X X X X X X X Extracts X X X X ..... use a Khopoli under the jurisdiction of Asstt. Commissioner, Central Excise and Customs, Panvel Division, Mumbai-III Commissionerate. On 26-9-1995 ex-bond Bill of Entry for clearance of the goods was filed claiming classification under Heading 27.10 CET Act, 1975 as Naphtha at the rate of duty NIL for Customs and @ 10% for additional duty of Customs ( c.v.d.). Scrutiny of the documents submitted by the appellant led the department to take a stand that there was no evidence to substantiate the appellant s claim that DIIB was Naphtha. Sample of the goods warehoused at Khopoli were drawn and sent to Chemical Examiner on 5-10-1995 who reported that the same is in the form of clear colourless volatile liquid composed wholly of unsaturated (olefi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is order of assessment passed by the Asstt. Collector of Customs Central Excise, Panvel II Dn., an appeal was filed and the Commissioner of Customs and Central Excise (Appeals), Mumbai, by the impugned order upheld the Asstt. Collector s order. The Commissioner (Appeals) held that Naphtha and DIIB are two different products commercially and technically; their appeal was rejected. 2. The ld. Counsel Dr. Nitin Kantawalla appearing for the appellant contended that the lower authorities have not considered the evidence led by the appellants by way of expert s opinion from the Mumbai University IIT and the supplier s letter to say that DIIB is Naphtha. The appellants were also not given a copy of the Dy. Chief Chemist report relied upon by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ited and the authority has also power to re-assess the goods. The assessment of the B/E allowing clearance for Home consumption in this case has been done by the Asstt. Collector, Panvel. The ld. DR also relied upon Notification 58/92 issued under Section 4 of the Customs Act by which the Asstt. Collector of Central Excise is empowered to act under the Customs Act within his jurisdiction. The ld. DR further argued that in this case DIIB is being supplied and invoiced as such and not as Naphtha. It is separate chemical distinct from Naphtha and has separate end use. Naphtha the DR submitted is a mixture of various hydrocarbons; DIIB is a product extracted from Naphtha by a process of a distillation. It is not itself Naphtha. 4. In reply th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave been supplied with the copy. To that extent, there is substance in their grievance. However, they have also led evidence in support of their case which may now be examined. This evidence consists of the following :- A letter from Prof. V.C. Malshe of University of Mumbai, Department of Chemical Technology dated 1-4-1996 in which the Professor has stated that the main criteria in respect of Naphtha are the boiling range and specific gravity. The Professor has concluded from the characteristics of Naphtha and DIIB, in his opinion DIIB is similar to products which are broadly classified as Naphtha. The other opinion is of Prof. M.C. Dwivedi from the Department of Chemical Engineering, IIT, Mumbai dated 3-4-1996. He has mentioned signif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nciple that in case of ambiguity the basic statute should be construed in favour of assessee - assuming that the said principle is good and sound - does not apply to the construction of exception or an exempting provision; they have to be construed strictly. A person invoking an exception or an exemption provision to relieve him of the tax liability must establish clearly that he is covered by the said provision. In case of doubt or ambiguity, benefit of it must go to the State . Even though the appellant had suffered the disadvantage of not being given copy of the Dy. Chief Chemist test report, yet even going by their own evidence, their case for exemption does not get advanced, because all their certificates only indicate that DIIB is sim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... toms Act. The purpose of such assessment at the time of clearance into-bond, the High Court held, is only to secure the duty payable by the importer on the clearance of the goods later, and the High Court further held that it cannot be accepted such a valuation made for the purpose of execution of a warehousing bond is conclusive. At best it can be regarded only as a tentative estimate of the liability to pay duty which is secured under the terms of the warehousing bond. The High Court further observed in that case, In view of this, the claim of the company that even at the time when the bill of entry for warehousing had been filed, an assessment had been made and that cannot be gone back upon, cannot be accepted . The Larger Bench also fo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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