9911796707
TMI Blog1998 (5) TMI 100X X X X Extracts X X X X X X X X Extracts X X X X ..... ion, which among other items includes Component Numbering machine. The lower authority held that said notification grants exemption to the specified goods that imported for using garments or hosiery industry. Since the appellants had sought clearance of goods in question for production of additional licences for OGL goods, under Appendix - 1B they are only traders and as such, could not claim the benefit of the said Notification. He accordingly held that the goods are correctly classifiable under sub-heading 8472.90 of the Customs Tariff. The Commissioner on consideration of the pleas rejected both the classifications and has remanded the matter to the lower authority to examine whether the goods in question are correctly classified under 9611 for Customs duty and CV duty or any other entry on the Customs/Excise Tariff and pass appropriate order determining the duty payable in accordance with law after observing principles of natural justice. He has refrained from expressing any views on whether the goods imported could be covered under the additional licence that had been produced before the lower authority. 3. The Commissioner has examined the catalogue of the item and has note ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be remanded to consider Heading 9611 for both Customs duty and CV duty or any other entry under Customs/Excise Tariff. 4. In these set of appeals the appellants have challenged the setting aside of both the entries made by the authorities and as claimed by the party. They have stated that Commissioner cannot introduce a totally new case and it is violative of principles of natural justice. He has to accept the Department s case for classification or accept the appellant s claim and cannot set aside the order to consider a fresh case which has not been made out by the Revenue. They have also stated that benefit of the Notification No. 16/85-Cus. cannot be denied to them as the appellants are using the said item in garment or hosiery industry and it is used as a packing machine and the serial number 59 of the Notification grant benefit to the packing machine and hence the benefit is required to be extended. 5. We have heard both sides in the matter. Ld. Advocate Shri Krishna Srinivasan reiterated the grounds made in the appeal memorandum and strongly urged for classifying the item under sub-heading 8443.60 which has description machines for use ancillary to printing . He submits ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e a stamping machine, which has got a serial number. This is used for putting the numbers and can be used in any place by hand-operation. The Commissioner has clearly noted that the machine is numbering machine of different models having 5/6/7 digit serial numbering facilities, and the numbering machines/stamping design for operating in the hand. He has examined the HSN Notes pertaining to Heading 84.72 and found that the item is not in keeping with the illustrations given under `other office machines . We have also examined Heading 84.72 under which the lower authorities had classified the item and find that the item does not fall under `other office machines . It is not akin with the illustrations given therein. As noted earlier, under the other office machines, the examples given are in the nature of hectograph or stencil duplicating machines, addressing machines, automatic bank note dispensers, coin sorting machines, coin counting/wrapping machines, pencil sharpening machines, perforating/stapling machines. As the item does not come in any of the type of illustrations given and it is not akin to such a machine which is generally used in office, therefore the Commissioner has ri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... printing and exclusively with printing industry. It is a general purpose hand-operated stamping, numbering machine and it has not been designed exclusively to operate with printing machines. Therefore the Commissioner s reading of HSN Explanatory notes at page 1240 is correct one, to hold that the item does not fall within the sub-heading 8443.60 which covers `machines for use ancillary to printing . As has been noted at page 1239 under Heading 8443, the hand-operated data similar stamps of Heading 96.11 are excluded while numbering, dating, etc. machines alone are included under Heading 84.43. It follows that the numbering, dating, etc. machines operating with irons, bands or letters or figures, etc. whether or not inked alone are covered under Heading 84.43 and not hand-operated data and similar stamps numbering machines which HSN suggests for classification under 96.11. Therefore, the Commissioner has suggested to the lower authority to examine the heading under 96.11 for classification purpose. Although it is his personal opinion, the same is not binding on the original authorities. The original authorities may examine the heading under the Customs Tariff for classification an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emains that proper officer while making assessment of the goods with reference to particular exemption notification has to himself satisfy that it will be within the overall scheme of the Notification to allow the benefit of concessional duty. He has noted that the goods in question are general purpose goods. They have also not imported in the capacity of the actual user who can be expected to use these goods for packing of food articles and thereby satisfy the condition of the Notification. He has held that while certain items can be used only in food processing, packing industry, there would be no condition in giving the benefit of the Notification in respect of such items. He has noted that the item admittedly has multiple use and the benefit of Notification can be given merely on a declaration that these have been imported for use in food industries and too by a person who is not engaged in processing, packaging food articles. He has distinguished the judgment of the Tribunal cited supra on the ground that the judgment deals with stapling machines and the Tribunal has held that goods were packing machines, case packing machines covered in Notification No. 47/84. He held that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ork, bone, hard rubber, hard plastics or similar hard materials. The classification is not in dispute. It is only the claim of benefit of Notification No. 125/86 for item 28 which deals with case packing machines, for which the appellants are seeking the benefit. There is no dispute raised with regard to the use of the item as a case packing machine and the Tribunal s judgment rendered in the case of CC v. Continental Exporters in Order Nos. 1210 - 1287/B2, dated 23-7-1997 [1989 (43) E.L.T. 310 (Tribunal)] has been dealt with. The lower authority has held that notification in question namely 125/86-Cus. deals with Food processing and Packing machines and the importer not coming within such a category and not being actual user also cannot claim the benefit of the notification meant for food processing and packing machines. We notice that Notification No. 125/86 merely states that in exercise of powers confirmed by sub-section 1(1) of [Section] 25 of the Customs Act, 1962 (52 of 1962), the Central Govt. being satisfied that it is necessary in the public interest so to do hereby exempts the goods specified in Column 2 of the Table hereto annexed and falling under the Chapter 84 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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