9911796707
TMI Blog1997 (6) TMI 152X X X X Extracts X X X X X X X X Extracts X X X X ..... llector of Customs, Bombay v. M/s. Sanghvi Swiss Refills Pvt. Ltd. 3. The Revenue is aggrieved with the acceptance of classification of the item under Tariff Heading 98.03/90 and granting the concessional benefit of Notification No. 234/82-C.E., dated 1-11-1982 and Notification No. 104/82, dated 28-2-1982. 4. While in the case of M/s. Chandra Industries v. CoIlector of Customs, Bombay, the Collector was adopted the classification under sub-heading 7333.40(2) as an articles of stainless steel and did not accept the contention that the goods are required to be treated as parts of ball pens for classification under Heading 98.03/09. He has noticed that the balls are admittedly made of stainless steel which is a base metal. The articles of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alia, to polished Steel Balls, the maximum and minimum diameters of which do not differ from the nominal diameter by more than one per cent or by more than 0.05 millimetre whichever is less, other steel balls are to be classified under Heading No. 73.33/40. It is stated that the conditions of the Chapter Note 4 to Chapter 84 are not fulfilled by test and therefore, the goods are assessable under Heading 73.33/40(2) of CTA, 1975. In this regard, he has referred to the CCCN explanatory note under Chapter 98, which excludes these goods from the ambit of Chapter 98 and directs to assess it either under Chapter 73 or 84 according to test report. It is stated that the concession of Notification No. 234/82-C.E., dated 1-11-1982 and 104/82 does ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Explanatory Notes to CCCN and neither statutory in effect nor they are binding. However, the HSN notes only have persuasive effect. Therefore, he referred to the judgment rendered in the case of M.M. Rubber Co. Ltd. v. Collector of Central Excise, as reported in 1997 (91) E.L.T. 265, wherein the Hon ble Supreme Court has emphasised on the importance of classifying the goods on the basis of trade understanding and in this regard, the Hon ble Supreme Court had relied on its earlier judgment rendered in the case of Atul Glass Industries Ltd. v. Collector of Central Excise, as reported in 1986 (25) E.L.T. 473, wherein the ITC policy pertaining to refills for ball point pens had been brought under OGL treating them as parts of ball point pens. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dgment rendered in the case of Wood Craft Products Ltd. (supra) and also in regard to Chapter (4) to Chapter 84 for its exclusion under that Chapter and reiterated that the Chapter note itself stated that other steel balls are classified under sub-heading 73.33/40. 12. On a careful consideration of the submissions made by both the sides, it is very clear that so far as the facts of the case are concerned, there is no dispute about the item being of stainless steel. The BTN notes at page 1759 under Chapter 98.03/04 clearly indicates that heading does not cover (b) Steel Balls for ball point pens and pencils (Heading 73.40 or 84.72) . It was argued by the learned Advocate that the BTN Explanatory Notes has no binding effect and it is only ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cludes these items from the ambit of Chapter 73. However, this Note l(n) to Section XV does not apply in the present circumstance. As in this context, reliance has been placed by the Revenue on BTN Notes which importance and it cannot be said that it does not have persuasive effect, although it may not have an effect of a binding nature. It is also seen that Note l(c) of Chapter 98 excludes parts of general use as defined in Note 2 to Section XV, of base metal (Section XVI), or similar goods of artificial plastic materials (which are generally classified in Heading No. 39.07). This Note l(c) clearly excludes parts of base metal (Section XV). Undoubtedly, the goods are of base metal falling under Section XV i.e. Chapter 73.33/40 and hence Ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assifiable under Heading 73.33/40 of the Customs Tariff Act, 1975. 14. As regards the claim for concessional benefit under Notification No. 234/82-C.E., dated 1-11-1982 and Notification No. 104/82, dated 28-2-1982 with regard to the countervailing duty, we have to hold that the Sl. No. 6 to the Schedule of the Notification grants exemption to pens including ball point pens and parts thereof refills for ball point pens. The Notification does not exclude steel balls which are used as parts of ball point pens. Admittedly, the balls are used as parts for ball point pens and therefore, their exclusion from the Notification does not arise. Although they may be parts of ball point pens, they have been considered separately as goods falling under ..... X X X X Extracts X X X X X X X X Extracts X X X X
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