Customs, Excise and Gold Tribunal - Tamil Nadu
Blue Star Ltd. vs Cc on 11 March, 1999
Equivalent citations: 2000(91)ECR238(TRI.-CHENNAI)
ORDER S.L. Peeran, Member (J)
1. By this miscellaneous application, applicant is seeking early hearing of the appeal solely on the ground that the imported goods are still lying uncleared and the Customs Authorities have re-assessed the imported goods into a different heading than what was declared without giving them an opportunity of hearing. It is also contended that before the Commissioner, they had produced enormous evidences which was also not looked into and the order has been passed and therefore, they are not in a position to meet the department's case. Therefore, they state they have a good case for seeking early hearing. In the accompanying Stay application they have also asked for stay of the operation of the order.
2. Both the applications were heard and on perusal of the record, we are satisfied that the appellants have made out a good case for early hearing of the appeal. Without passing any order on the Stay Application, the Miscellaneous application for early hearing is considered and the appeal itself is taken up for hearing.
3. The appellants filed Bill of Entry declaring the imported goods as Refrigeration equipment "1 Unit York Millenium Air Cooled Screw Chiller" under Sub heading 8418.61 of Customs Tariff which reads "Compression type units whose condensers are heat exchangers". This sub heading falls under the Residuary heading reading "Other refrigerating or freezing equipment heat pumps". The Assistant Commissioner directed the Dock Officer to open and examine the packing and verify the description and in particular, to verify as to whether the item imported could be considered as Chilling/Cooling plant for Air-conditioning or Refrigerator System. The appellants had produced operation manual as well as catalogue. On examination, on the back of the Bill of Entry, the following report was noted:
Air cooled chiller -- 1 No. verified description. As per explanation provided by the Technical Representative, the Unit is used for cooling liquids. The cooled liquids in turn can be used for cooling in air conditioning plant.
4. It is contended by Ld. Advocate for the appellants that after the examination, by the concerned officer, the Bill of Entry was assessed as part of Air-conditioning Plant under sub-heading 8415.90 of the Customs Tariff. The Assistant Commissioner also passed the impugned Order-in-Original. In the impugned Order-in-Original, the Commissioner has referred to Technical literature and extracted the details from Universal Encyclopaedia of Machines, how things worked, volume-I, Harper Collins Publishers India on Air conditioning system. He has also examined Explanatory Notes on H.S.N. under Chapter heading 84.15 and 84.18. The Assistant Commissioner has also referred to the Board's Circular F. No. 138/13/80-CX-4, TN 60/80 dated 27.09.1990. He has also referred to the opinion expressed by I.I.T., Chennai. Besides, he has also referred to a similar import made by Dr. Reddy's Laboratory, Hyderabad by Bill of Entry No. 52103 S/14.09.1998 through M/s. Blue Star Ltd. and also examined technical write-up provided therein. In view of these examinations, he has concluded that the item is required to be classified as part of Air-Conditioning Plant under Sub-Heading 8415.90. The appellants contested the view before the Commissioner (Appeals) on the ground that there was a violation of principles of natural justice in as much as that the order has been passed without putting the material evidence before them and without hearing them. They countered the findings by producing extracts from the Hand book of Air Conditioning System design and also filed a detailed affidavit of an expert in the field namely Dr. Millind Vishwanath Rane, Assistant Professor, Indian Institute of Technology, Bombay who has given details of more than seven pages of his expertise in the field and thereafter given his opinion in the matter. It is contended that the Commissioner has not examined any of these materials, but by a very brief order has rejected their case by merely expressing the opinion that he is in agreement with the Assistant Commissioner's Order that the item is machinery part of Air Conditioning system falling under 8415.90. Therefore, it is contended that both the orders are not speaking orders and are violative of the principles of natural justice, and hence, a prayer is made for remand of the case to the Original authorities to enable them to file the materials relied by them along with evidences, opinion of the said expert and argue the matter before the Assistant Commissioner and satisfy him about their case.
5. Heard Ld. SDR who reiterated the departmental contention.
6. On a careful consideration of the submission, we notice that after the Assistant Commissioner had ordered for examination of the consignment, he ought to have placed the department's case before the appellants and should have called upon them to explain and file their objections. Instead, the Assistant Commissioner has proceeded to pass the order without hearing the appellants by relying of materials as noted, thus it has resulted in violation of principles of natural justice. Their case was also not fully dealt with by the Commissioner (Appeals) and the materials produced by them was also not examined and a very brief order has been passed by the Commissioner (Appeals). Thus, the complaint of violation of principles of natural justice is justified. In that view of the matter we set aside the impugned orders and remand the matter to the Assistant Commissioner who shall grant an opportunity of hearing to the appellants and permit them to file all the materials relied by them and after hearing the appellants, pass a considered detailed speaking order. At this stage, Ld. Counsel seeks for a direction to the Assistant Commissioner to decide the matter expeditiously as the goods are still under Custom's control. The Assistant Commissioner may take up the matter expeditiously and pass an order in terms of the observations made.
(Pronounced and dictated in open Court).