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TMI Blog2014 (2) TMI 114X X X X Extracts X X X X X X X X Extracts X X X X ..... 18 21, as was being followed by certain Customs field formations - CBE&C has clarified that the ‘combined refrigerator-freezer fitted with separate external doors’ would be classifiable under Heading No. 8418 10 and not under Heading No. 8418 21 and, therefore, they are not covered under Sr. No. 50 of the Notification No. 85/2004-Cus., dated 31-8-2004. CBE&C is an apex authority implementing customs laws in this country and, therefore, the clarification issued by such an authority needs to be given due consideration. Hence, the same cannot be brushed aside merely on the basis of a certificate issued by a foreign authority, who is not required to undertake classification for customs purposes - Prima facie case not in favour of assessee - Stay denied. - C/16/2011 - Stay Order No. S/217/2012-WZB/C-I(CSTB) - Dated:- 1-2-2012 - Shri Ashok Jindal and P.R. Chandrasekharan, JJ. Shri V.S. Nankani and Aqeel Sheeraji, Advocates, for the Appellant. Ms. D.M. Durando, Deputy Commissioner (AR), for the Respondent. ORDER The appeal and stay application are directed against the Order-in-Appeal No. 292(Gr.VA)2010(JNCH) IMP-273, dated 13-10-2010 passed by the Commissioner of Customs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) The appellants are engaged in importing Combined Refrigerator-Freezer fitted with separate external doors or otherwise from Thailand under the Thailand-Indo Free Trade Agreement and in accordance with the Interim Rules of Origin for Preferential Tariff Concessions for trade between India and Thailand issued by the Central Government vide Notification No. 101/2004-Cus., dated 31-8-2004. The appellant classified the goods under CTH No. 8418 21 00 supported by the certificate of Origin issued by the competent authority of the exporting country. The goods under importation are eligible for the concessional rate of duty as provided for under Notification No. 85/2004, dated 31-8-2004. Sub-heading No. 8418 21 00 covers all forms, types and varieties of household refrigerators including those fitted with external doors and the said sub-heading does not exclude Combined Refrigerator-Freezer fitted with external doors of household type. The department s proposed classification under CTH 8418 10 90 appears first in the sequence and following the principle of classification that later entry excludes the former, it follows that the household type refrigerators are excluded from Heading ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct under importation is a combined Refrigerator-freezer fitted with separate external doors. 5.1 We have also perused Notification No. 101/2004-Cus., dated 31-8-2004 which notifies Thailand - Interim Rules of origin for preferential tariff concessions for trade between India and Thailand. Annexure-A to the said Notification gives details of the goods covered under the agreement. In Sr. No. 13 of the said Annexure, the following goods have been described :- Tariff item (HS 2002) Description of products Applicable Rule 8418 Refrigerators, freezers and other refrigerating or freezing equipment, electric or other, heat pumps other than air-conditioning machines of heading 84.15 13 841821 Refrigerators, household type compression-type Change at 6-digit H.S. level (change to sub-heading 841821 from any other sub-heading provided that there is a Local Value Added content not less than 40%. From the above description, it is clear that what is covered under the agreement is Refrigerators household type; compression type falling under Tariff item No. 8418 21 of the HS Code. The HS Code rel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has relied on the judgment of the Hon ble High Court of Bombay in the case of Bombay Chemicals Ltd. rendered in 1982 and also in 1990 (cited supra). In these cases pertaining to exemption under Notification dated 1-3-1968, the condition for availing the exemption was to obtain a certificate from the Director General of Technical Development that the goods covered by the Notification are required for the manufacture of insecticides and are not produced in India. The Customs authorities in that case denied the exemption on the ground that the goods are not being used for agriculture purpose even though the Director General of Trade Development (DGTD) has issued the certificate. In that context, it was held by the Hon ble High Court of Bombay that the certificates granted by DGTD are binding and conclusive on the customs authorities and therefore, once the certificate is produced and conditions are complied with, it was obligatory upon the customs authorities to grant the exemption. In the case of Zuari Industries Ltd. - 2007 (210) E.L.T. 648 (S.C.) relied upon by the appellant, the issue related to duty exemption on a captive power plant, which was set up as part of the fertilizer p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etermining the origin of the products eligible for the preferential tariff concessions for the Early Harvest Scheme pursuant to the Framework Agreement between the Republic of India and the Kingdom of Thailand and it deals with what are the terms and conditions for determination of origin. Rule 14 of the said Rules states that A claim that products shall be accepted as eligible for preferential concessions in the importing Party shall be supported by a Certificate of Origin issued by a Government authority designated by the exporting Party and notified to the other Party to the Agreement in accordance with the Operational Certification Procedures, as set out in Annexure - B . As per the Article 6 of Annexure-B, the Issuing Authority shall, to the best of their competence and ability, carry out proper examination upon each application for the Certificate of Origin to ensure that that application and the certificate of origin are duly completed and signed by the authorized signatory and the origin of the product is in conformity with the Indo-Thailand Interim rules of Origin. The other statements of the certificate of origin correspond to supporting documentary evidence submitted, d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ilateral trade agreement. Certain other Customs field formations have also raised doubts about this classification and sought a clarification from the Board. 3. The matter has been examined by the Board. For the purpose of classification of Combined refrigerator freezer with separate external doors , it is stated that sub-heading 841810 covers refrigerators which are combined with freezers and have separate doors, whereas, sub-heading 841821 covers only refrigerators without separate freezers and separate doors. Further, sub-heading 8418 30 covers only freezers . Therefore, a Combined refrigerator freezer with separate external doors merits classification under sub heading 841810. This view is also supported by HS classification. Further, Combined refrigerator freezer with separate external doors of household type is appropriately classifiable under tariff item 8418 10 90, as the other tariff entry at 8418 10 10 covers such refrigerators of commercial type only. 4. In view of the above, I am directed to clarify that the classification of Combined refrigerator freezer with separate external doors would be under sub-heading 8418 10 and not under 8418 21, as was being foll ..... X X X X Extracts X X X X X X X X Extracts X X X X
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