9911796707
TMI Blog2000 (3) TMI 239X X X X Extracts X X X X X X X X Extracts X X X X ..... officers were of the opinion that the goods were appropriately covered under sub-heading 8414.30. The difference in duty between the goods falling under the rival classifications would amount to Rs. 5,97,65,428.77. For ITC purposes the claim of the importers was that the goods merited classification under OGL in terms of entry at Sr. No. 20(2) of Appendix 1 Part B of the relevant ITC Policy. The Customs officers were, however, of the opinion that in view of the specific nomenclature, viz. compressors of refrigeration and airconditioning all types occurring in entry at Sr. No. 515 of Appendix 3, Part A of the said Policy, the goods were appropriately classifiable thereunder. Show cause notice, dated 19-2-1991 was issued demanding the differential duty and also seeking confiscation of the compressors under Section 111(d) since the goods were imported under valid licence as also under Section 111(m) of the Customs Act, l962 on the ground of an alleged misdeclaration made of the imported goods as those other than for use in airconditioning and refrigeration. 3. RPL also filed a bill of entry on 6-12-1990 for import of propylene gas compres sor package. The Customs Tariff classifi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e notices, this follows as a consequence and as requested by the importers the question of registering the contract under Heading 98.01 has been examined by me in these proceedings. 7. In his discussions he held that under the Project Import Regulations it was required that the contract be registered before the order is made for clearance of the goods for home consumption. He found that the application made after the issue of show cause notice was permissible under the said Regulations. It was observed that the DGTD had recommended the goods to be covered under the Project Import scheme. He made directions to register the contract provisionally and to permit clearance of the goods under Heading 98.01 provisionally subject to the final decision of the DGTD pursuant to certain objections raised by the Custom House. 8. Against this order of the Collector, the Revenue have filed the present appeal. 9. The appeal was argued by Shri Deepak Kumar, SDR. The respondents were represented by Shri J.J. Bhatt, senior counsel appearing along with Shri Rohan Shah and Ms. Anjali Chandurar, Advocates. 10. On behalf of the revenue it was claimed that in terms of para 21(f) of the Policy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore the Tribunal in the cited case of C.C. v. Titagarh Steel Ltd. - 1998 (104) E.L.T. 589. In this judgment certain testing equipment was held to be capital goods on the ground that the activity of testing was integrally connected with the process of manufacture. 14. Although the text of the order made before the Tribunal in the citation made of the case reported in 1998 (104) E.L.T. 589 is not before us, from the facts as narrated in the order of the CEGAT it would appear that dis pute with identical point is before us in the present proceedings. On this ground also the cited case law would have full applicability. 15. In the appeal memorandum and in the submissions by Shri Deepak Kumar much has been made of the wrong manner in which the Commissioner had appreciated the facts before him. The appellants have also been prone to point out seeming discrepancies in the logic of the Commissioner. We are not inclined to go into these aspects because the fact that the goods as imported are capital goods and the conclusions based thereupon cannot be faulted. On perusal in the Policy of the rival entries and the finding of the Commissioner we uphold his belief that the goods were cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as given in the show cause notices. In this situation the judgment reported in 2000 (36) RLT 158 of the CEGAT in the case of CCE, Bombay v. Industries Roller Corporation Anr. would be relevant. The issue before the CEGAT was whether the activity of rubber lining of used tanks and vessels would amount to manufacture or not. The Member (Judicial) following certain case law held that the activities did not amount to manufacture. The Vice-President, however, differed with him. He observed that there was no uniformity in the ratio of the judgment cited before the Tribunal. It was his finding that if the assessees were manufacturing the lining then the activity would amount to manufacture but if such lining was bought out then the activity would not amount to manufacture. On this ground he directed that the matter be remanded for re-examination. This difference to opinion was referred to a third Member. The third Member heard the submission to the effect that in recommending the remand the Vice-President had gone beyond the subject matter of the appeal. The learned third Member on reference cited observations of the Calcutta High Court in the case of R.L. Rajgaria v. ITO reported in 10 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notice could not be urged before the Tribunal. In the case of Magadh Engineering Works - 1998 (100) E.L.T. 78 the Tribunal set aside the findings in the lower order on the ground and the order went beyond the allegations in the show cause notice. Where the ground of denial of an exemption notification was not urged in the show cause notice, the Tribunal found discussion therof by the Collector as not legal in the judgment in the case of Insta Medic International - 1997 (89) E.L.T. 701. In the case of Nettur Technical 1997 (93) E.L.T. 732 also the Tribunal did not find favour with the orders which went beyond the show cause notice. 20. In the instant case we find that the Collector was wrong in taking into account certain developments which had taken place subsequent to issue of the show cause notice in very substantially altering his own findings on the classification of the contested goods. We find that the impugned order to this extent does not survive. 21. Consequently the impugned order is upheld only insofar as the discussions made ending upto paragraph 33 thereof. His orders contained in paragraphs 34 to 42 having been made in excess of the grounds in the show cause not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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