9911796707
TMI Blog1999 (7) TMI 147X X X X Extracts X X X X X X X X Extracts X X X X ..... ents were imported from Hansa West Germany by the appellant herein. The clearance of the goods was sought under OGL Appendix 6 Item 1 of ITC Policy 1988-91 AM. 1.2 Both these consignments were examined on 22-12-1990 in order to find out whether the goods fall within the definition of parts. On examination it was found that the goods were fabricated housing and not housing raw as declared by the appellant. It was alleged that the goods were hit by S. No. 11 of Appendix 2 Part B of 1990-93 AM ITC Policy read with para 7(18) and 20 of the said policy. The appellant, however, vide their letter dated 8-1-1991 explained that the goods covered by both the Bills of Entry are component parts of water mixer. The term 'raw' was used in the broad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Policy. Since the said licence had not been produced the goods have been held liable to confiscation. As the goods had already been released on execution of ITC bond equal to the amount of Rs. 7,70,000/- in respect of the two Bill of Entry impugned above, the adjudicating authority has directed recovery with reference to the ITC bond given by the appellant herein. He has also imposed a penalty of Rs. 1,00,000/- on the appellant. 2. Learned Advocate, Shri J.S. Agarwal has submitted that the adjudicating authority has improperly discarded the clarifications of the DGTD merely on surmises and conjectures. He draws attention in this connection to para 9 of the impugned order wherein the finding regarding the clarifications issued by DG ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s confirmed by the clarification sought by the importer from DGTD vide their application dated 19-2-1992 with Appendix II K. The application and literature are clearly misleading. It, therefore, appears that the importers did not obtain the clarification for the goods under import which they now say are components of water mixer. In the second letter of clarification dated 24-3-1992 neither the DGTD's earlier letter nor any Customs reference number pertaining to this case has been mentioned. Therefore, it appears that the clarification given by DGTD is not pertaining to the goods in question but for certain fluid mixer/mixing valves. Mixers, mixing valves for fluids are different from the water mixer used as bathroom/kitchen/sanitary fittin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wherein the adjudicating authority has found as follows :- "5. I have carefully considered the evidence on record and seen the sample of the goods. It is essential to find out the exact nature of the goods imported under the two bills of entry. As per the description given in the Bills of Entry, the goods are components of water mixer consisting of various items like body liver, cover cap, housing raw, spout raw, cartridge etc. Therefore, from the declaration in the bill of entry and also the OGL declaration submitted by the importer, the goods appear to be components of water mixer. The learned Advocate also urged that the goods are components and the sample produced at the time of hearing also confirmed this fact. These parts, although ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mponents of fluid/liquid mixers. They cannot be considered as components of sanitary fittings. They are also fully covered by S. No. 730 of Appendix 3 Part A. He, therefore, submits that the impugned order be set aside. The appeal be allowed with consequential relief to the appellants. 3. Opposing the contentions, learned JDR, Shri T.A. Arunachalam reiterates the findings of the adjudicating authority both on the question of identification of the goods with the description of the goods in S. No. 113 Appendix 2B of the ITC Schedule and also on the question of discarding the clarification issued by the DGTD. For proper appreciation of the submissions of the learned JDR, I reproduce the description as given in S. No. 113 of Appendix 2B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing authority, in my view, for discarding the clarification of the DGTD in the face of other evidence on record is not quite appropriate. 5. Apart from that, even on merits I observe that S. No. 113 Appendix 2B on which the Revenue relies on is for restricting the items "kitchen/bathroom sanitary fittings" and not "kitchen/bathroom fittings". In other words, all fittings of kitchen/bathroom are not sanitary fittings, as held by the adjudicating authority. This finding is not correct, keeping in view the judgments of the Apex Court relied upon by the learned Advocate, mentioned supra. It is only the sanitary fittings in the bathroom/kitchen which would be covered by S. No. 113 of Appendix 2B. The goods are not covered by S. No. 113 of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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