9911796707
TMI Blog2000 (12) TMI 609X X X X Extracts X X X X X X X X Extracts X X X X ..... he Assistant Commissioner, C.C.I, on the bill of entry that since the parts in question are manufactured by M/s. Allison U.S.A., value is much lower than the actual value, forwarded the case to S.I.B. for further investigation. Subsequently, appellant s business premises were put to search but nothing incriminating was recovered. Though the appellants were summoned for recording of their statement, no statement was, in fact, recorded. 2. Thereafter, a show cause notice dated 11-1-1993 was issued to the appellants alleging that spares imported by the appellants were grossly misdeclared in value and the plates declared by them are actually clutch plates correctly classifiable under heading 8483.90 attracting higher rate of duty. Accordingly, notice proposed to enhance the assessable value of the goods and to recover the differential amount of duty and also to impose penalty. After due adjudication, the Commissioner of Customs vide his impugned Order rejected the transaction value and ordered for determination of value and assessment on the basis of the price list of the manufacturer after giving usual discounts and deductions being offered by these manufacturers to ordinary importe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the authorized dealers of the said manufacturers. He submitted that there is no material on record to show that the goods in question have been manufactured by either of these two leading companies. He also submitted that as a matter of fact, the manufacturers other than the original manufacturers either make some changes in the part numbers by putting prefix or suffix or by putting their own corresponding part numbers as against the original manufacturer s part numbers. In the instant case, the marking on the goods imported by the appellants are actually carrying, the suffix along with the part numbers. The goods were examined by the Customs and it was noted that the description was correct as per the invoice. The markings on the goods as found on examination, are available in the first page of the show cause notice and they very clearly show that there is a suffix attached to the part numbers, which is absent in the price list of the original manufacturer. This fact though specifically brought to the notice of the Commissioner, had been simply ignored by him. He also submitted that this fact was a sufficient evidence to show that the goods in question had not been manufacture ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rged by the Revenue. In support of the above submission, he also relied upon the various decisions and judgments of the Tribunal. 6. Countering the arguments, Shri R.K. Roy, learned JDR reiterated the reasoning of the adjudicating authority. He submitted that the parts in question clearly bore the part numbers of M/s. Allison and M/s. Twin Disc. This fact is good enough to prove that the goods in question had been manufactured by these two companies. Investigations conducted by the Department with M/s. Premnath Diesels Ltd. and M/s. Bharat Power Corporation Ltd. show that similar goods had been imported at the higher assessable price. He also submitted that there was a lot of similarity in package and design of assembly of the packets in question to that of M/s. Allison packaging. 7. As regards the classification, he submitted that the Department can change the classification at any time and there is no estoppel against the law. 8. We have carefully considered the submissions of both sides. The Department mainly relied upon the invoices of the authorized dealers of M/s. Allison and M/s. Twin Disc. The appellants have not challenged the price lists circulated by these two comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g has been given by the Commissioner. Accordingly, we remand the matter to the Commissioner as regards the issue of classification, for a fresh decision, after taking into consideration the submissions made by the appellants and the points raised by them. 10. As the appeal has been allowed on the point of classification by way of remand, we set aside the quantum of penalty imposed upon the appellants. However, the adjudicating authority would be free to consider the same during the de novo proceedings in case the appellants are found guilty of misdeclaring the classification of the goods. The appeal is disposed of in above terms. Sd/- Archana Wadhwa Member (J) 10. [Dissent per : S.K. Bhatnagar, Vice President]. - With due respect to the Hon ble Member (J), my views and orders are as follows : 11. I observe that Bill of Entry No. 766 in question was filed on 15-7-1992 for clearance of one package containing spares for loaders along with invoice No. IN-455, dated 2-7-1992 of the supplier s namely, M/s. Jainis Inc, New York. The Department alleged that package contained clutch plates are manufactured by M/s. Alison Transmission, USA and one manufactured by M/s. Twin disc, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ehicles of heading Nos. 87.01 to 87.05 . 19. In other words, the position emerges like this - The importer had claimed 8431.49 in the Bill of Entry. It was initially appraised as such on 22-7-1992 and reassessed under 8708.93 by A.C.C. but S.I.B. had differed the proposed classification. 20. The Collector has upheld S.I.B. classification without indicating any reasons for the same. 21. It is not clear as to why the goods were being classified under 8708.93 earlier, why the appellants had claimed 8483.91 and why the Department wanted to change it to 8483.90. The Collector's order is a non-speaking order and does not say anything. 22. Prima facie, it could however, be observed this much even at this stage that whereas 87.08 covers Parts and accessories of the motor vehicles of heading Nos. 87.01 to 87.05 and 8708.93 specifically covers clutches and parts thereof whereas heading 84.31 covers Parts suitable for use solely or principally with the machinery of heading Nos. 84.25 to 84.30 and double desh 49 Others comes under single desh for such parts suitable of machinery heading Nos. 84.26, 84.29; whereas 8433.90 covers Parts of harvesting or threshing machinery of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. Alison Transmission/Twin Disc. 26. Since the veracity of the ld. Counsel s contention regarding distinction in marks and numbers could be examined inter alia by an enquiry with reference to the commercial practice prevalent in this regard, the Department was required to look into this aspect and the Commissioner was required to record a specific finding (as it will have a great bearing not only on this case but on a series of importations of the past, present and future). 27. Here, of course, we are concerned with the implication of the result of such enquiry insofar as this case is concerned. 28. This aspect is very much linked with question of valuation and price because it is common knowledge that price of the spares of the original manufacturer of equipment, generally differ from the price charged by others who manufacture similar products by copying the design etc. and the aspects of standard, quality, goodwill and reliability etc. are involved. 29. Whatever has happened in respect of the previous consignments of similar goods has a bearing but only to a limited extent. If the Department had made a mistake in respect of the previous consignments and the law does not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hwa, Hon ble Member (Judicial) has been referred to me as a Third Member for my opinion : - Whether in view of the observations of the Hon'ble Member (Judicial), the matter was required to be remanded only for a limited purpose indicated by her or in view of the observations and findings of the Vice-President, the matter as a whole, was required to be remanded. 32. Shri P.K. Das, ld. Advocate, assisted by Shri Vipul Kundalia, ld. Advocate, appearing for the appellants, submits that Hon ble Vice-President and also Hon ble Member (J) have remanded the matter to the Commissioner for de novo adjudication. He further submits that the remand directions have to be spelt out in precise terms for the officer to whom the matter is remanded and who is bound to act as per that direction. In this context, he relies on the decision in the case of G.T.C. Industries v. Commissioner of Central Excise, Bombay - 1997 (91) E.L.T. 443 (T). In his view, in the instant case, while Hon'ble Member (J) has given specific direction to decide the matter in remand for giving reasoning as to how the goods would fall under the Sub-heading 8483.90, Hon'ble Vice-President has not given any specific direction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y, ld. JDR for the Revenue, supports the order of the Hon ble Vice-President. 35. I have carefully gone through the order recorded by Hon ble Vice President as also the order of Hon ble Member (J). On a close perusal of the relevant material on record and on consideration of the submissions from both sides, I find that there is no difference of opinion with regard to remanding of the classification issue. However, the difference of opinion relates to valuation of the impugned goods. I find that Hon'ble Member (J) in para 8 of her order has categorically held that the appellants have brought a lot of evidence on record to show that the part numbers of the leading manufacturers are picked up by the other original Equipment Manufacturers for the purpose of easy identification. In this connection, reference has been made to the Parts Catalogue of M/s. ESCO and M/s. Maruti which establish without doubt part numbers for the original manufacturers are being used by the other manufacturers for easy identification and reference of the goods, though may be with some changes in the shape of prefix or suffix. Therefore, the contention of the appellants was accepted and the finding of the Adj ..... X X X X Extracts X X X X X X X X Extracts X X X X
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