9911796707
TMI Blog2009 (3) TMI 108X X X X Extracts X X X X X X X X Extracts X X X X ..... ustice R.M.S. Khandeparkar, President and Shri M. Veeraiyan, Member (T) Shri Prabhat Kumar, Advocate, for the Appellant. Shri A.K. Madan, DR, for the Respondent. [Order per : Justice R.M.S. Khandeparkar, President (Oral)]. - Heard at length the learned Advocate for the appellants and the learned DR for the respondent. Perused the records. 2. This appeal arises from the order dated 19 th of July, 2005 passed by the Commissioner of Customs (Appeals), New Delhi, dismissing the appeal filed by the appellant against the assessment order dated 19th of April, 2003 of Assistant Commissioner. The Assistant Commissioner of Customs had finalised the assessment of the machinery imported by the appellant under the Bill of Entry No. 415061 dated 18th December, 2002 and 432948 dated 28th January 2003 thereby had rejected the claim of the appellant for the grant of exemption under Notification No. 21/2002 Serial No. 257, List No. 34, Serial No. 9. 3. It is the case of the appellant that the machinery imported by them is squarely covered under Serial No. 9, 25 of List 32 of Serial No. 257 of the said Notification. On the other hand, it is the case of the Department that the mac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cted the benefit under the said Notification to the appellant. He further submitted that once the machinery does not satisfy the description under the entry which is described as being entitled for exemption under the said notification, the appellant cannot make any grievance about the denial of the benefit under the said notification. Placing reliance on the decision in the matter of C.C.E., Bombay vs. Xlo Machines Tools Ltd. reported in 1996 (86) E.L.T. 375 (Tri) and Batliboi Co. v. C.C., Bombay reported in 1987 (32) E.L.T. 118 (Tri.), learned DR submitted that if the exemption notification is to be strictly construed and if the description of the machinery is not in consonance with the description of the machinery under the entry in the notification, the assessee cannot claim the benefit under such notification. He further submitted that in any case the additional function performed by the machinery would disentitle the benefit which is available strictly to the machinery meant for the particular function for which exemption is granted. 6. It is not in dispute that the machinery which is sought to be imported by the appellant is button making machinery. It is, howe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the leather industry or footwear industry. The expression 'design for use' clearly discloses that the goods specified in List 34 in order to avail the benefit under the Notification should necessarily be for use in the industry described therein. It is not the every product which could satisfy the description in List 34 under the Notification, that would be entitled to, claim exemption under the said notification. Such benefit is essentially restricted to goods which are designed for use in leather industry or footwear industry. In other words, in order to claim the benefit under the said notification in relation to the goods specified in list 34, the two conditions must be satisfied-(i) the goods must be designed for use in the industry or (ii) such industry must be either leather industry or footwear industry. It is not that the goods which can be used in any industry, other than those specified in the said notification, but satisfying the description in List 34, would be entitled to claim the benefit under the said Notification. Undoubtedly, an exemption notification is to be strictly construed is well settled law. Once the assessee is able to show that the goods are covered u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... NE FOR THE PRODUCTION OF BUTTONS, BEADS, ACCESSORIES MADE IN POLYESTER/WOOD/HORN AND DESTINATED TO THE TEXTILE INDUSTRY DOUBLEVANGUARD MASS DMK-STANDARD version fully automatic milling and scoring machine complete with standard accessories. VANGUARD HPK-STANDARD : fully automatic milling and scoring machine complete with standard accessories Vanguard 1000 : Fully automatic milling and scoring machine complete with standard accessories." The description of the machinery under invoice dated 20-12-2004 reads thus- "AUTOMATIC MACHINE FOR THE PRODUCTION OF BUTTONS, BEADS, ACCESSORIES MADE IN POLYESTER /WOOD/HORN AND DESTINATED TO THE TEXTILE INDUSTRY VANGUARD HPK-STANDARD: Fully automatic milling and scoring machine complete with standard accessories VANGUARD 1000 : Fully automatic milling and scoring machine complete with standard accessories. Total amount net CIF Nava Sheva" The description of the machinery in the invoices dated 30-11-2004 and 25-10-2004 reads as under: "AUTOMATIC MACHINES FOR THE PRODUCTION OF BUTTONS BEADS, ACCESSORIES MADE IN POLYESTER, WOOD, HORN, DESTINATED TO THE TEXTILE INDUSTRY DOUBLE VANGUARD MASS DMK-STANDARD version fully automatic mil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t right from the day one that the goods satisfied the requirement of serial No. 257 List 34 Item No. 9 and 25, the appellant failed to establish the fact that the goods were designed for use in the leather industry. 13. The description of the machinery as quoted above clearly shows that the product was designed for the use in the textile industry. It does not anywhere state that it was essentially for the use in leather industry. It was exactly on this count, the Assistant Commissioner of Customs had clearly held that button making industry is not a leather industry and the machinery in question is not entitled for the benefit of the said Notification. Obviously, no material was produced before the authorities to justify that the goods were satisfying the requirement of serial No. 257 read with Item No. 9 of the List 34 under the said Notification No. 21 /2002. 14. As regards the contention of the learned Advocate on behalf of the appellant that in any case, the goods imported by the appellant are squarely covered by Item No. 25 of List 34 of serial No. 257 of the said Notification is concerned, it is pertinent to note that no such contention was sought to be raised either ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d hence classification under heading 84.43 of Customs Tariff Act, was appropriate. 17. In Vishal Surgical Equip. Co. Pvt. Ltd. it was held by the Tribunal that exemption benefit should not be denied merely because the instrument also carries out a function other than those indicated in the Notification. In other words, merely because, the instrument carries out certain functions in addition to the main function which is the subject matter of the notification it cannot be a justification to deny the benefit under such notification. Nevertheless, the assessee will have to establish that the instrument performs the main function which is the subject matter of the notification. 18. In Escorts Tractors Ltd. [1998 (98) E.L.T. 717 (Tri.)] case, it was held that automatic gear tooth rounding and chamfering machine capable of performing three functions, namely, tooth chamfering, gear deburring, and other rounding was covered at item Nos. 36 and 37 under serial No.1 of the Table appended to Notification No.154/86-Cus dated 1-3-86 and therefore, could be subjected to duty at 35% ad valorem as applicable thereto. This is again on the point that merely because some additional function ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... leather manufacturer irrespective of the fact that whether the machine imported is designed for use or not in leather industry would be entitled for exemption. In an appeal, the issues cannot be decided on hypothetical basis. That apart, the notification on the basis of which exemption is claimed nowhere relates to the class of persons who would be entitled for exemption thereunder. It essentially speaks of the goods designed for use in leather industry. Once the records nowhere disclose the goods imported were designed for use in leather industry, all other issues are rendered redundant. Hence, there is no substance in the points which are sought to be canvassed on behalf of the appellants. 24. Lastly, it is sought to be contended that though such benefit under the said exemption notification has been granted to some of the importers of similar type of machinery, it has been illegally denied to the appellant. There is no cogent material on record to substantiate the contention on behalf of the appellant. That apart, assuming that the Department has granted such exemption in some of the cases either intentionally or otherwise, or negligently or carelessly or illegally that woul ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
