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TMI Blog1997 (7) TMI 285X X X X Extracts X X X X X X X X Extracts X X X X ..... t from 1st March, 1986, the Auxiliary duty applicable is 40% instead of 25% levied as there is no specific exemption Notification in respect of auxiliary duty other than Notification No. 186/86 by which all goods are leviable to 40% of the value. Accordingly a demand notice was issued for the difference in duty amount totalling to Rs. 46,57,443.60 in respect of all the five the consignments. The Assistant Collector after following the adjudication proceedings rejected the importers claim for the benefit of Customs Notification No. 186/86 read with Customs Notification No. 154/86 and confirmed the amounts demanded in the show cause notice. The importers pleaded before the Collector that Horological machines and testing equipments are exempted from basic Customs duty as in excess of 10% of value in accordance with Notification No. 45/86, dated 28-2-1985. For the purpose of levy of auxiliary duty, the Assistant Collector in his order, levied 25% in terms of the Notification No. 186/86, dated 1-3-1986. However, he realised that the rate of duty under this Notification had been raised to 40% instead of 25% and accordingly, the differential duty had been demanded on this point. The appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tor has held that the only way the appellants can get the benefit of Notification No. 186/86 is when they decide to opt for a concessional rate of assessment under Notification No. 154/86 and not otherwise, as they did not wish to avail this Notification because it would not be beneficial to them as the rate of duty is higher than what is available under Notification No. 45/85. Therefore, the order of the Assistant Collector is correct in law and on that reasoning rejected the appellants plea. 2. It is contended by the Senior Advocate, Shri G. Chander Kumar that the reasoning arrived at by the Collector is unsustainable, as when there is another Notification granting lower benefit which is advantageous to the importer, the same cannot be denied as has been held in the Tribunal s judgment as in the case of Indian Oil Corporation Ltd. v. Collector of Central Excise, as reported in 1991 (53) E.L.T. 347. He also relied on the judgment rendered in the case of Singh Alloys Steel Ltd. v. Collector of Central Excise, as reported in 1991 (56) E.L.T. 782 and also that of Collector of Customs v. Bharat Heavy Electricals Limited as reported in 1987 (29) E.L.T. 163. He pointed out to provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iliary duty. He submits that they had not challenged the classification and in terms of the assessment made in the Bill of Entry, the auxiliary duty applicable is 40%, which has been demanded in the present case. Initially the Assistant Collector had short levied the duty and on discovery demanded the duty in terms of the Notification applicable to the goods as per the declaration adopted by the importers in the Bill of Entry itself. He submits that the appellants had imported large number of machineries but their claim for benefit of setting up for manufacture of watches was accepted and therefore, the question of individual classification would not arise as they have not submitted catalogue of individual machines for examination. He further pointed out that there are 16 headings and 117 sub-headings under Headings 8456 to 8465 (as specified in the claimed Notification) re-classification under each tariff headings cannot be done, as the goods had left the customs charge. Further there is no claim from their side for revising the classification. He relied on the Hon ble Supreme Court s judgment rendered in the case of All India Glass Manufacturers Federation v. Collector of Custom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y, machineries, have been mentioned in the Table. In the Table, there are 85 Sl. Nos. describing various machines and their functions and type of machines. Item (ii) of the Notification also specifies about 29 Sl. No s with description of various machine. Therefore, it follows that only those machineries which are specified in these Notification and which are classifiable under the said sub-heading alone would be eligible for the benefit of full exemption of the auxiliary duty. In the present case, the appellants have not filed the list of entire machinery imported by them, but have only mentioned the containers nos. in the Bills of Entry and have taken the benefit of Notification 45/85 (as amended) which grants benefit to Capital goods which are imported for initial setting up for the assembly or manufacture of goods mentioned in the Schedule of the Notification. The assessee having chosen to get the goods classified as capital goods for initial setting up as Machines and Mechanical appliances having individual functions under Heading 84.79", cannot chose to ask for a different classification, for the purpose of auxiliary duty without subjecting the individual machines for indivi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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