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TMI Blog1984 (9) TMI 289X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 12-10-1979. 2. The respondents imported a consignment of top line tube winder endless belts, valued at ₹ 31,101.00 The supply was by M/s. Scandura Ltd., West Yorkshire, U.K. The consignment was covered under the Bill of Entry No. D-282, dated 6-8-1979. The goods were assessed to duty under heading 40.05/16 (3) at 40% + C.V. duty at the rate of 25% under Item 16A (4) C.E.T. The importers lodged the refund claim with the Asstt. Collector on the ground that the belts in question were essential spare parts of the spiral tube winding machine and as such correctly assessable to duty under Heading 59.16/17 of Customs Tariff Act as textile articles of a kind commonly used in machinery or plant. The claim for refund was rejected by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rima facie, classifiable under two or more Headings, classification shall be effected as follows :- (a) The Heading which provides the most specific description shall be preferred to Heading providing a more general description. (b) Mixtures and composite goods which consist of different materials or are made up of different components and which cannot be classified by reference to (a) shall be classified as if they consisted of the material or component which gives the goods their essential character, in so far as this criterion is applicable. (c) (not relevant to the case). Shri Sundar Rajan argued that 3 (a) would apply when the Heading provided the most specific description. According to him since the goods in question woul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re. He stated that since the belts were made of polyurethane substance and not of rubber, the appropriate classification would not be Chapter 40 CTA. As regards the essential quality, Shri Sundar Rajan stated that it came only from the polyurethane layer which was smooth in view of (i) it was intended for taking the glue from one end, and applying it on paper at the other end, and (ii) the smooth surface of the belt ensures that the gum did not stick on to the surface and enabled spreading of the gum uniformly on the paper. The predominance of the plastic material was pointed out to be a significant factor. He also relied on the explanatory note in support of his contention. He cited the ruling reported in 1983 E.L.T. 553 (Dharangadhra Chem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... period of six months. He stated that the Government had not applied their mind while issuing the show cause notice. On merits he argued the Rule 3(b) of the Interpretative Rules would come into operation only when Rule 3(a) did not apply. He said that the article in question was not a conveyor belt but a component of a machinery . It had no other use except for cardboard tube forming in the Textile industries. According to him Heading 59.16/17 was more specific than Heading 39.07 It is a textile article commonly used In Machinery or Plant. The plastic materials, i.e., polyurethane, etc., did not by itself give the goods the essential characteristic. The core of high tenacity polyester which is the textile material with the cover of high ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o annul or modify any order or erroneous refund of duty. The provisions contained in Section 131(5) with regard to non-levy or short-levy cannot be equated with erroneous refund inasmuch as the three categories of errors in the levy are dealt with separately. That was a case of refund. In 1984 (16) ELT 332 (Collector of Customs, Bombay v. Nav Bharat Enterprises, New Delhi) it was held that Section 131(3) of the Customs Act, 1962 empower the Central Government to annul or modify any order passed under that Act and that the time limit provided in section 131(5) would not be applicable to the notice issued under 131(3). Further relevant date as provided under the third proviso to Section 36(2) will be computed from the date of passing of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plant. 40% 22B, 19, 20, 21 Chapter 39 refers to artificial resins, plastic materials, etc. The Heading 39.07 reads as follows :- Heading No. Sub-heading No. description of article Standard rate of duty Central Ex. Tariff Item 39.07 Articles of the materials described in Heading No. 39.01/06 100% 15A, 15B, 16B Under the Interpretative Rules, if the Heading provides the most specific description it should be preferred. Heading 59.16/17 refers to textile fabrics and textile articles of a kind commonly used in machinery or plant. So it must be mad ..... X X X X Extracts X X X X X X X X Extracts X X X X
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