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TMI Blog2012 (10) TMI 739X X X X Extracts X X X X X X X X Extracts X X X X ..... y form" or "silver in any form" shall include medallions and coins but shall not include jewellery made of gold or silver as the case may be and foreign currency coins. 1.1 The point of dispute in this case is as to whether the imported gold mountings and gold findings are "gold in any form" covered under the Notification No. 62/2004-Cus. and, hence, eligible for this exemption notification, or as contended by the department, are items of jewellery or its parts, excluded from the purview of this notification. There is no dispute that for the purpose of assessment of duty, the gold mountings had been classified under sub-heading 7113 19 10 and gold findings has been classified under sub-heading 7113 11 90. In all these cases, the Commissioner by the impugned orders-in-original extended the benefit of Notification No. 62/2004-Cus. to the imported gold mountings and findings holding that the same are covered by the expression "gold in any form" in serial No. 2 of the table annexed to the Notification No. 62/2004-Cus. The Commissioner in this regard relied upon the Board's Circular No. 40/2004-Cus., dated 4-6-04. These orders of the Commissioner were reviewed by the Committee of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re classified under 71 of the Customs Tariff, that the same clarification has been given by the Board in its Circular No. 13/2006-Cus., dated 29-3-2006, wherein it has been clarified by the Board that the findings and mountings of gold and silver are covered within the scope of Sl. No. 2 and 3 respectively of the Notification No. 62/2004-Cus., dated 12-5-2004 and the concessional rate of import duty may be extended to these items, that these instructions of the Board are binding on the department, that the duty involved in each of these cases is less than Rs. 5,00,000/- while as per the instruction No. 390/Misc./163/2010-JC dated 17-8-11 issued by the Board regarding litigation policy, no appeal to the Tribunal is to be filed in the cases where the duty involved is less than Rs. 5,00,000/-, that in this regard they rely upon the judgment of Hon'ble Delhi High Court in the case of Commissioner of Income Tax, Delhi-III v. M/s. P.S. Jain and Co. reported in ITR 179/1991, wherein the Hon'ble High Court taking note of the fact that the amount involved being Rs. 52,565/-, did not proceed with the reference in view of the Circular of Central Board of Direct Taxes and that in view of this, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rseded In exercise of the powers conferred by sub-section (1) of Section 25 of the Customs Act, 1962 (52 of 1962), the Central Government, being satisfied that it is necessary in the public interest so to do, and in supersession of the notification of the Government of India in the Ministry of Finance (Department of Revenue) No. 80/1997-Customs, dated the 21st October, 1997, published in the Gazette of India, Extraordinary vide, G.S.R. No. 610(E), dated the 21st October, 1997, hereby exempts goods of the description specified in column (2) of the Table hereto annexed and falling within Chapter 71 of the First Schedule to the Customs Tariff Act, 1975 (51 of 1975), when imported into India, other than through post, courier or baggage, from so much of the duty of customs leviable thereon which is specified in the said First Schedule as is in excess of the amount calculated at the rate specified in the corresponding entry in column (3) of the said Table and from the whole of the additional duty of customs leviable thereon under Section 3 of the said Customs Tariff Act. TABLE S. No. Description of goods Rate (1) (2) (3) 1. Gold bars, other than tola bars, bearing Manufacturer' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respondent confirms the Revenue's plea that the mountings are nothing, but semi-finished jewellery as the mounting described above have acquired the shape and character of jewellery. Some mountings may be such that fully finished jewellery can be made by just setting the gem stones, while in some mountings some scratching etc. may be required. But the fact which emerges is that the mountings have character and shape of the jewellery in which the stones either as such or after some scratching are to be fixed so as to obtain fully finished jewellery. In terms of Rule 2(a) of the General Rules of Interpretation of Schedule to the Customs Tariff Act any reference in a heading to an article shall be taken to include a reference to that article in complete or finished form, provided that as presented the incomplete or unfinished article has the essential character of the complete or finished article. Applying this rule of interpretation of tariff, the gold mountings, which are nothing but unfinished jewellery, in which either as such or after some scratching, the gems can be set to obtain the fully finished jewellery, have to be classified as gold jewellery under sub-heading 7113 19 10 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rculars of the Board are binding only when the same are in accordance with the law. In this regard in para 6 of the above-mentioned judgment, the Apex Court has observed as under :- "Circulars and Instructions issued by the Board are no doubt binding in law on the authorities under the respective statutes, but when the Supreme Court or the High Court declares a law on the questions arisen for instruction, it would not be appropriate for the Court to direct that the Circulars should be given effect to not the view expressed in a decision of the Court or the High Court. So far as the clarifications and instructions issued by the Central Government and the State Government are concerned, they represent merely their understanding of the statutory provisions. They are not binding upon the Courts. It is for the Court to declare what the particular provisions of the statute says and it is not for the executive. Looked on from another angle a Circular which is contrary to the statutory provisions has no existence in law." 12. In this group of appeals, as discussed above, the gold mountings and findings being items as jewellery are outside the purview of Notification No. 62/2004-C.E. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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