9911796707
TMI Blog2005 (6) TMI 363X X X X Extracts X X X X X X X X Extracts X X X X ..... Department and demands were made for correct assessable under Heading 9404.29 for the imports made during the period 1997-2001, where the Commissioner had upheld the classification under Heading 9404.29, holding that the extended period invoked in the Notices cannot be applied and dropped the demands for Rs. 17.92 crores approx and duty short levied of Rs. 16.03 crores approx on goods imported between March and July, 2000 was confirmed under the classification arrived at by him. As regards goods provisionally assessed and cleared, the demand of Rs. 6.46 crores was the consequence of this decision. This Tribunal, in its order reported in 2003 (153) E.L.T. 419, after considering the Board's instructions No. 56/2001, dated 25-10-2001 and the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he circular. We think that since it calls for determination of facts and examination of goods, this exercise is best undertaken by the Commissioner. While doing so, the Commissioner should also consider and apply the case law relating to the scope and applicability of such circulars and determine whether the circular under consideration applies to the goods in question and if it does, whether it would apply to goods imported prior to its issue. While doing so, the Commissioner may also take into account the nature of the locally manufactured goods and technical literature relating to the omission. He shall pass orders after hearing the submissions of the appellant for which reasonable opportunity may be given." 2. The Commissioner, pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) all of which had been imported prior to issue of Board's Circular No. 56/2001, dated 25-10-2001 to be classified under-Heading 9404.29 and discharged the duty accordingly and confirmed the duty on 20 Bills of Entry pertaining to period 3-3-2000 to 31-7-2000 as listed in Annexure B to Show Cause Notice as also 6 Bills of Entry provisionally assessed were finally assessed under Heading 9404.29 at the appropriate rate of duty which was assessed at Rs. 6,46,16,561/- to be demanded and came to a specific order as follows in Para 21 of the order - "21. In view of the foregoing discussions and findings, I, order as below : (a) I, therefore, order that the impugned goods covered by 26 (20+6) bills of entry (detailed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made on various issues as regards applicability of a Circular retrospectively or prospectively as in this case of Circular 56/2001, dated 25-10-2001 and the subsequent Circular issued in 2003 and various case laws relied upon, as also the contest on merits, on the classification as arrived at by the ld. Commissioner; considering all these aspects it is to be found : (a) that the remand order vide Para 18 of the Tribunal order was to a specific effect and the issues which were required to be redetermined thereby would be - (i) to examine as to whether the goods in question corresponded to those mentioned in the first Circular (i.e. Circular of 56/2001, dated 25-10-2001); (ii) &nb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot applied. The Commissioner was not required to apply the Circular dated 29-5-2003 retrospectively to the imports as he has proceeded to do so. The order has therefore traversed beyond the order in remand and therefore is to be struck down and cannot be upheld. (b) A perusal of the Circular dated 25-10-2001 and dated 29-5-2003 discloses, that while Circular dated 25-10-2001 does not prescribe any date for the applicability thereof while Circular dated 29-5-2003 under Para 6 which reads as follows : "6. In view of this, it is hereby clarified that the said goods may henceforth be classified under Heading 94.04 of the Customs Tariff from the date of issue of this Circular. Board's Circular, till it is in force, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ospective' in nature. When that circular itself had a stipulation, of prospective application, there was therefore no reason to apply that and not to apply the Circular dated 25-10-2001 which has no bar of retrospective application especially when that circular has no effective date. The Customs Act classification in this case have been adopted at various places under different headings and Circular dated 25-10-2001 records that different practices were existing. The change in practice of an assessment cannot be brought about by applying Circular dated 29-5-2003 which is stipulated to be effective only prospectively as provided in that circular. The classification for imports earlier to Circular dated 29-5-2003 cannot be disturbed & if made ..... X X X X Extracts X X X X X X X X Extracts X X X X
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