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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 ..... six consignments vide six Bills of Entry filed in December, 2008 and claimed the benefit of the aforesaid exemption. These Bills of Entry were assessed provisionally and allowed to be cleared on execution of Bond and Bank Guarantee. A less charge demand was issued to the appellant vide notice dated 14-10-2008 demanding differential duty of Rs. 36,25,948.63 in respect of the said goods imported vide 18 Bills of Entry during the period April to September, 2008 proposing to classify the goods under importation under CTH 8418 10 90 and deny the benefit of Sr. No. 50 of Notification No. 85/2004-Cus., dated 31-8-2004. Since the goods under importation were Refrigerator-Freezer fitted with separate external doors, a reference has been made to the CBE&C seeking clarification as to whether aforesaid goods are eligible for exemption under the said Notification. The CBE&C vide Circular No. 23/2008-Cus., dated 29-12-2008 clarified that the classification of Refrigerator-Freezer fitted with separate external doors of household type is appropriately classified under tariff 8418 10 90 and not under tariff 8418 21 00 and the said goods are not covered under Sr. No. 50 of Notification No. 85/2004-C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the conflicts between the tariffs of the country and therefore, the classification prescribed by the Certificate of Origin is final and conclusive. He relied on the judgment of Hon'ble Mumbai High Court in the case of Bombay Chemicals Pvt. Ltd. v. Collector of Customs - 1990 (49) E.L.T. 190 and Commissioner of Customs v. Hico Enterprises - 2008 (228) E.L.T. 161 (S.C.). He also relied on the judgment in the case of Union of India v. Azadi Bachao Andolan & Anr - 263 ITR 706. (b) The reliance placed by the department on the Board Circular is incorrect as Board's Circular does not having any overriding effect over the Certificate of Origin issued by the originating country. (c) The learned Counsel further submits that the appellant-company is making losses and submitted a balance sheet for the year ending on 31-3-2011, therefore, if any pre-deposit is ordered the appellant would be put to financial hardship. In the light of these arguments, the learned Counsel submits that waiver of pre-deposit of dues adjudged be granted at this stage. 4. The learned AR appearing for the Revenue reiterates the findings of the lower adjudicating ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ..................... 8418 29 00 -- Other.................................................................... 8418 30 -- Freezers of the chest type, not exceeding 800 l capacity : 8418 30 10 -- Commercial-type electrical .................................... 8418 30 90 -- Other...................................................................... A perusal of the above tariff entry makes it clear that combined Refrigerator-freezer fitted with external doors would fall under Tariff Item No. 8418 10. It covers both the commercial type of the said goods under sub-heading No. 8418 10 10 and the non-commercial type under 8418 10 90. In other words, Combined Refrigerator-freezer fitted with external doors fall under Heading No. 8418 10 only. Refrigerators, household type are covered by 8418 21 00 if they are of compression type and under Heading No. 8418 29 00 if they are non-commercial type. Thus it excludes Combined Refrigerator-freezer (household type) fitted with separate external doors. It is thus obvious that the import of Combined Refrigerator-freezer fitted with external doors is not covered by the agreement and consequently they are not eligible for duty concession v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct of the Income Tax - Indo-Mauritius Double Taxation Avoidance Convention, 1983. In that case, the Hon'ble Apex Court held that principles of interpretation of international treaty are not the same as those under interpretation of statutes and this should be kept in view while interpreting international treaties. 5.3 In the case under consideration, the facts are substantially different. In the Bombay Chemicals' case, the question was one of end-use and it was held that once the end-use certificate was given by the competent authority, the customs cannot question the end-use and deny the benefit. Similarly, in the case of Zuari Industries (supra), the Hon'ble Apex Court held that once the essentiality certificate was issued, power plant imported as part of the fertilizer project can also be granted the benefit of exemption. The Azadi Bachao Andolan's case dealt with an income-tax case, which has no relevance to the case under consideration. In the case under consideration, the issue relates to eligibility of exemption under Notification No. 85/2004-Cus., dated 31-8-2004. Sr. No. 50 grants exemption to goods falling under Heading 8418 21 00. Therefore, the question to be deci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion. Levy includes assessment and assessment comprises of classification and valuation of the goods and applying the rate of duty on the value determined. Thus, classification of the goods under Indian Customs Tariff is a sovereign function pertaining to levy of tax and such a power cannot be delegated to any foreign authority. Therefore, the argument of the appellant that once the certificate of origin has been issued indicating the classification, the same should be accepted by the Indian authorities does not stand to any logic or reason and should be completely rejected. 5.6 It will also be relevant at this point to consider the Circular issued by C.B.E. & C. vide Circular No. 23/2008-Cus., dated 29-12-2008, which reads as under :- "Subject : Clarification on classification of combined refrigerator freezer with separate external doors for the purpose of extending benefit of Notification No. 85/2004-Customs dated 31-8-2004 - Regarding. Your attention is invited to Notification No. 85/2004-Customs, dated 31-8-2004 wherein duty concessions have been extended to certain specified goods when imported into the country from Thailand subject to the condition that su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ;From a reading of the above Circular, it is very clear that 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. 5.8 In view of the above discussions, we are of the view that the appellant has not made out any case on merits for waiver of pre-deposit of dues adjudged. On the other hand, we are of the view that the Revenue has a very strong case in their favour. 6. As regards the plea of the appellant with regard to financial hardship, we have carefully perused the balance sheet submitted by the party. As per the balance sheet, as on 31-3-2011, the appellant had cash and bank-balance worth Rs. 5,41,7 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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