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TMI Blog1985 (6) TMI 34X X X X Extracts X X X X X X X X Extracts X X X X ..... stoms Tariff Act, 1975. But the Assessing Authorities expressed the view that on an earlier occasion the Appellate Collector of Customs has given a ruling that the staples of these types are classifiable only under Item No.83.01/15(2) of the Customs Tariff Act and hence demanded duty under the said item. The respondent objected to the classification and contended that the stand taken by the department is incorrect and against the principles under the Customs Tariff Act. The respondent has also brought to the notice of the Customs Authorities that several writ petitions were filed questioning the correctness of the order on this point and the High Court also granted interim reliefs permitting those parties to import and clear the goods of identical type after assessing the same under Item 73.31 of the Act subject to the condition of furnishing bank guarantee to the extent of one half of the differential amount. In so far as the respondent is concerned, it was contended that he be allowed to clear the goods for the present after assessing under item 73.31 of the Act and after furnishing bank guarantee of 50 per cent of the difference in duty till a direction is obtained from this Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessment of the Assistant Collector of Customs imposing the duty under Heading 83.01/15(2) of the Act, according to the appellants, is correct. It was further contended that against the order of the Assistant Collector of Customs, the remedy of the respondent is to prefer an appeal under section 128 of the Act before the Collector of Customs and since no appeal has been filed, the respondent cannot invoke the jurisdiction under Article 226 of the Constitution of India and hence the writ petition filed by the respondent on this ground alone has to be dismissed. It was further averred in the counter filed by the second, appellant, that the staples imported by the respondent cannot be assessed under Item 73.31. Even in Brussels Nomenclature the "staples" used in office type stapling machine or pliers are excluded from Heading 73.31 and are classifiable only under heading 83 as stationery goods. It is under the circumstances it was contended that the proper duty that as to be levied is under Heading 83.01/15(2) and not under 73.31 of the Customs Tariff Act, that the respondent is not entitled to any relief as prayed for and that the writ petition be dismissed. 3. Venkataswami, J. who ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... apter 73 Iron and Steel and Articles thereof TABLE Heading No. Sub-heading No. description of article Standard Rate of duty Central Excise Tariff Item 1 2 3 4 73.31 Nails, tacks, staples, hooknails corrugated nails, spiked cramps, studs, spikes, and drawing pins, of iron and steel, whether or not with heads of other materials but not including such articles with heads of copper 100% 3 The heading under Chapter 83 and Entry 0.1/15(2) reads as follows:- Miscellaneous articles of base metal 1 2 3 4 83.01/15(2) Safes, strong boxes, strong rooms(including linings and doors thereof) cash and deed boxes and the like; office equipment (for example, filing cabinets, racks, sorting boxes paper trays and paper rests); Other than office furniture falling within Chapter 94; fittings for loose leaf binders, for files or for stationery books; letter clips, staples, indexing tags and similar stationery goods, stutuctes and other ornaments of a kind used indoors; flexible tubing andpiping beads and spangles bells and gongs, non-electric ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... packaging in industries. HD. 10B USES : Sealing of sacks at shops, supermarket, packaging in industries, etc. HD. 3 USES : Stapling of documents in general at office and factory. HD. 30L USES : Bookbinding, fastening of small bags, labelling of textile items. HD. 12L USES : Stitching of thick documents, mounting bags and stachels book-binding. On perusing the catalogue, it is clear that the contention of the department that the staples imported are predominently used as stationery goods, cannot be correct. We are unable to come to the firm conclusion that the staples imported by the respondent are predominantly used as stationery goods. Thus, a reading of Headings 73.31, and 83.01/15(2) clearly shows that the types differ, on account of metal used in the manufacture of staples. As far as Chapter 73 of the Customs Tariff Act is concerned, it has to be noted that it deals with iron and steel articles thereof, and Chapter 83 deals with miscellaneous articles of base metal. Looking from this point of view, we are inclined to hold that the staples imported by the respondent would fall only under Heading 73.31. This conclu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... argument of the learned counsel has no merit. It must be noted that the heading description for 73 is very specific and we are inclined to agree with the learned counsel for the respondent that the staples in question will fall only under Heading 73.31 of the Customs Tariff Act. 7. The counsel appearing for the caveator (respondent) placed reliance 73-D and contended that the staples used for office use are excluded from Heading 73.31 and that the imported staples are not of that kind. There is force in this contention. We are of the view on perusing the records that the staples in question will fall under Heading 73.31 and not under Heading 83.01/15(2) of the Customs Tariff Act. 8. The learned counsel for the appellants relying on a decision in Collector of Customs, Madras v. K. Ganga Shetty (A.I.R. 1963 S.C. 1319) contends that of two constructions with respect to an entry arise, one in favour of the Revenue has to be adopted. We have perused the said decision. The decision cited by the appellants' counsel cannot be relied with respect to the proposition of levying duty. No decision has been cited by the learned counsel for the department arising out of levy of excise duty wh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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