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TMI Blog2009 (12) TMI 535X X X X Extracts X X X X X X X X Extracts X X X X ..... chapter heading 8547 of the Customs Tariff Act - order dated 24-10-2007 - issue is now squarely covered in favour of the appellant - C/247/2005 - 1491/2009 - Dated:- 2-12-2009 - S/Shri M.V. Ravindran, Member (J) and P. Karthikeyan, Member (T) REPRESENTED BY: Shri V.J. Sankaram, Advocate, for the Appellant. Shri U. Raja Ram, DR, for the Respondent. [Order per: M.V. Ravindran, Member (J)]. - This appeal is direct against the Order-in-Appeal No. 146/2005 MCH dated 1-4-2005. 2. The relevant facts that arise for consideration are that the appellant herein imported consignments of granules and declared them as " outer layer (CE-126), raw materials for manufacturing of outer layer of heat shrinkable sleeve (component for tele ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Pradesh in the case of Goldstone Technologies Ltd. v. UOI Ors. in Writ Petition No. 2213 of 1996. He would submit that the Revenue was aggrieved by the order of the Hon'ble High Court of Andhra Pradesh and moved SLP No. 15585 and 15586 of 2005 and which were dismissed by the Hon'ble Supreme Court by its order dated 24-10-2007. 4. Ld. DR on the other hand would submit that the appellant had imported granules in primary form. He would submit that the granules imported in primary form cannot be considered as product falling under chapter heading 8547 by any stretch of imagination. It is his submission that the reliance placed by the Hon'ble High Court of Andhra Pradesh in the case of XL Telecom Pvt. Ltd. [1999 (105) E.L.T. 263 (A.P.)], con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng together these materials amounts to manufacture or not so as to at tract Central Excise duty. Admittedly in the present case the facts and circumstances are different wherein raw granules in primary from are being imported. Even Hon'ble Tribunal in its order dated 28-11-2000 had observed that the essential characteristic and test is of the capacity to shrink on application of heat. Accordingly Hon'ble Tribunal in para 5 of its order observed that "it would thus appear that the basic granules do not have the capacity which exists in the resultant sheet. As per observation of the Hon'ble Tribunal if the granules has the same property of ability of shrink as the sheets have then the judgment would apply to the granules and not otherwise. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o not find any reason to interfere with the order of the lower authority, and the appeal filed is rejected." 6. It can be seen from the above reproduced portion that the appellant had placed before the id. Commissioner (Appeals), the decision of the Hon'ble High Court of Andhra Pradesh in Writ Petition No. 2213 and 4313 of 1996, but the id. Commissioner (Appeals), distinguished the said decision on the ground, that in that case classification of granules imported in primary form was not a matter of question which challenged by the petitioners. We are not in agreement with these findings of the Id. Commissioner (Appeals). We find that in Writ Petitions No. 2213 and 4313, the facts are as under:- "It is the case of the petitioner that it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e falling under Chapter 85.47 of the Customs Tariff Act. The petitioner shall accordingly be liable to pay the customs duty as well as countervailing duty as assessable under Chapter 85.47 of the Customs Tariff Act." 7. It can be seen from the above reproduced part of judgment of the Hon'ble High Court of Andhra Pradesh, that they have specifically laid down that outer layer heat shrinkable sleeve in granule form will fall under chapter heading 8547 of the Customs Tariff Act. The question of classification of identical products imported under chapter 39 would not arise, as the SLP filed by the Revenue against the said judgment was dismissed by the Hon'ble Supreme Court vide order dated 24-10-2007. We are of the considered view that the is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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