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TMI Blog1989 (3) TMI 134X X X X Extracts X X X X X X X X Extracts X X X X ..... y that would be leviable on its import, entered into correspondence with the Customs Department. By its letter dated the 23rd of April 1980, the Petitioner enquired with the Collector of Customs regarding its classification. By initimation dated the 2nd of July 1980, the Petitioner was informed that the consignment was stacking Machine and fell within the Heading 87.07 and duty would be leviable accordingly. The Petitioner finding that the duty payable under the above classification was over 100%, it by its letter dated the 3rd of February, 1981 addressed to the Director, Central Board of Excise and Customs, New Delhi, requested to refix the duty payable. By letter dated the 28th of April 1981, addressed by the Government of India, Ministry of Commerce, New Delhi, to the Director, Central Board of Excise and Customs, New Delhi, the Government asked for assistance and advice in respect of the Petitioner's claim for classification. The consignment arrived and was duly cleared on the 11th of September, 1981 and the Bill of Entry in regard thereto shows that the Petitioner paid duty of Rs. 23,62,792.83 P. on the two container handling equipment and Rs. 1,00,511.26 P. on its spares. Thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated to "Cranes, transporter cranes, etc.". Though the consignment in question was crane mounted on a chassis fitted on the wheels to facilitate short movement for the purpose of lifting, handling, loading or unloading the goods, the same could not be termed as "Vehicle" so as to attract the application of Heading 87.07. He relied upon the technical literature in respect of consignment and pointed out that the consignment was meant for handling and not for transporting goods. He further submitted that the popular and trade meaning of the consignment should be adopted rather than the technical meaning which was applied by the Department and for this purpose a reference is made to Encyclopaedia Britannica. According to Shri Bharucha, the Petitioner did not approach the Department in its Appellate Jurisdiction as no relief could have been granted in its favour as claim had already been time-barred and it was not open to the relevant authorities to condone the delay. The remedies of appeals not being adequate and alternate efficacious remedies the Petitioner chose to prefer the present Petition. On the question of limitation he submitted that as the excess payment was made under a mist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which is the subject-matter of the present dispute, is described in a brochure which is annexed as Exhibit 'A' to the Petition. It is a device for stacking and handling containers with the help of a crane of modelled device. It is no doubt fixed on chassis fixed over vehicles which are mechanically propelled. It cannot, however, be terms as a "Vehicle". The primary function of the said crane is to handle containers to short distances. It is not the function of this equipment to transport goods. 8. In order to appreciate the controversy between the parties, it may be advisable to reproduce the two Headings, viz., Headings 84.22 and 87.07, ad verbatim. Heading 84.22 falls under Section XVI which deals with machinery and mechanical appliances, etc. It provides - "Lifting, handling, loading or unloading machinery, telphers and conveyors (for example, lifts, hoists, winches, cranes, transporter cranes, jacks, pulley tackle, belt conveyors and telegerics) not being machinery falling within Heading No. 84.23." Heading 87.07 falls under Section XVII which deals with Vehicles, Aircraft, etc. It provides - "Works, trucks, mechanically propelled, of the types used in factories, wereho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt in the case of United Offset Process Pvt. Ltd. v. Assistant Collector of Customs, 1988 (38) E.L.T. 568 (S.C.), wherein it was observed - "The question involved in this matter is as to what is the proper Tariff Entry under which the goods in question fall and are as such classifiable. There is no specific technical definition as such provided in the Customs Tariff Act or in the notification. If there is no meaning attributed to the expression used in the particular enacted statute then the items in the customs entries should be judged and analysed on the basis of how these expressions are used in the trade or industry or in the market or, in other words, how these are dealt with by the people who deal in them, provided that there is a market for these type of goods. This principle is well-known as classification on the basis of trade parlance. This is an accepted form of construction. It is a well-known principle that if the definition of a particular expression is not given, it must be understood in its popular or common sense, viz., in the sense how that expression is used everyday by those who use or deal with those goods. See, in this connection, the observations of this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ……………………………………………………….. Power trucks: This equipment improves the productivity of labour by increasing both the speed and the size of load. Forklifts are among the most common power trucks now used. Trucks for general packaged merchandise usually are designed to convey from 2,000 to 4,000 pounds (900 to 1,800 kilograms). Power trucks of larger capacity are designed for special product handling. Lumber yards, for example, have large-capacity trucks usually of a straddle type that can lift 10,000 to 20,000 pounds (4,500 to 9,000 kilograms) of lumber. ……………………………………………………… Cranes and hoists: Generally employed for very heavy lifting and moving of machinery and materials, cranes and hoists may be fixed or movable. Jib cranes, which consist of single arms attached to walls or other structures, have the capability of swinging through an angle of 180° to 360° and therefore are useful for positioning material. Jib cranes are frequently observed in high-rise building construction, where there are set on the topmost floor to move construction materials vertically to the floor that is being worked and horizontally to the place where needed. ……………………………………………………… Mobile cranes a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... viz., Heading 84.22 and 87.07, are pari materia in both these statutes, the Explanatory Notes found in the Brussels Nomenclature can at best be persuasive in nature and cannot have a binding effect. To this effect are the observations contained in a judgment, though of Customs, Excise and Gold (Control) Appellate Tribunal, in the case of Saurashtra Chemicals, Gujarat v. Collector of Customs, Bombay, 1983 (13) E.L.T. 1182 (C.E.G.A.T.). It has been observed in the said case as follows: "In this connection, we would also like to observe that the Explanatory Notes to the CCCN can only be taken as guidelines but not conclusively determinative of a matter which has to be decided on a comparative study of the Tariff Entries given in the Schedule to Customs Tariff Act." To the same effect are the observations contained in the case of Nivedita Chemicals Pvt. Ltd., Bombay v. Collector of Customs, Bombay, reported in 1985 (20) E.L.T. 382 (Tribunal), again a case of Customs, Excise and Gold (Control) Appellate Tribunal. 13. Having considered the aforesaid two decisions of the Tribunal, the aforesaid ratio whereof I concur, in my judgment, wherever there is a divergence between the Custo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mber, 1983 that the Petitioner was informed of the expert opinion of the Director of Central Board of Excise and Customs, New Delhi. By this time the period of limitation to prefer an appeal had already expired. The Collector of Customs in appeal as also the Tribunal, being creatures of statute, would be vested with no jurisdiction to condone the delay provided under the Act. [Vide Miles India Ltd., Baroda v. Appellale Collector of Customs, Bombay, 1983 (13) E.L.T. 1026 (C.E.G.A.T,), and Miles India Ltd. v. The Assistant Collector of Customs, 1987 (30) E.L.T. 641 (S.C.) = 1985 ECR 289 (S.C.)]. In my view, the Petitioner's appeals to these authorities would have been naturally futile. The limitation that exists in the powers of the Appellate Authorities would, however, not come in the way of granting relief in a Writ Petition. In the case of Union of India and Others v. Advani Oerlikon Limited and Another, 1987 (31) E.L.T. 44 (Bom.), this Court held that where the duty is paid on incorrect value, it was a payment under mistake of law. Receipt thereof by the Department is without the authority of law. The time limit laid down for refund under the Act in such a case was not applicable ..... X X X X Extracts X X X X X X X X Extracts X X X X
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