Customs, Excise and Gold Tribunal - Delhi
Bharat Electronics Ltd. vs Collector Of Customs on 11 January, 1983
Equivalent citations: 1983ECR423D(TRI.-DELHI), 1983(12)ELT390(TRI-DEL)
ORDER
1. This is a revision application to the Government of India which, under Section 131-B of the Customs Act, 1962, is to be proceeded with as if it were an appeal filed before the Tribunal.
2. The Appellants imported and cleared through the Port of Madras a consignment of glass tubes for the manufacture of television tubes vide Bill of Entry Cash No. D 1966 dated 29-8-74. The goods were classified under Item No. 60 of the Indian Customs Tariff Schedule (ICT) and charged to basic customs duty at 100% ad valorem. They were also charged to additional (countervailing) duty of customs equivalent to the duty of excise leviable under Item No. 23-A(4) of the 1st Schedule to the Central Excises & Salt Act, 1944. After clearance of the goods on payment of duty so assessed the appellants filed a refund claim before the Assistant Collector of Customs, Madras on two grounds, namely, that certain shortages were noticed in the consignment and that the TV tubes being wireless reception tubes, their assessment according to the material composition was not correct. The Assistant Collector partly allowed the refund claim on the first ground and rejected the claim on the second ground. The Appellants went in appeal to the Appellate Collector of Customs, Madras against the Assistant Collector's orders. The Appellate Collector rejected the appeal on both the counts stating that the appellants had not produced any further evidence regarding the 125 glass tubes stated to have been short-supplied by the foreign suppliers and that the plea for re-assessment of the glass bulbs under Item 73(2) of the ICT had been made after 3 months but within six months from the date of communication of the Assistant Collector's orders. The Appellate Collector also stated that the notification cited by the appellants in support of their claim for re-assessment of the goods at 60% basic duty (and 15% auxiliary duty) was not tenable on the ground that the notification had only prospective effect and that assessment made prior to the date of the notification were correct in law.
3. In the Revision Application, which is being disposed of by the Tribunal as if it were an appeal, the appellants have urged two grounds :
(i) the 125 glass tubes which had been short supplied in the original consignment were subsequently received from the suppliers free of charge and they were cleared on payment of duty through the Custom House. In view of the evidence now produced, the refund of duty paid initially on the short supplied goods should be refunded ;
(ii) the glass tubes are of special glass, special shape and design for the manufacture of TV picture tubes. The Customs authorities were classifying these tubes under Item 73 (2) of the ICT for a long time and it was around 1-3-1973 that they resorted to the classification of the goods under Item 60 of the ICT read with Item 23-A of the Central Excise Tariff Schedule. In view of this the appellants had taken up the matter with the Government of India who, after considering all aspects of the matter, issued a notification No. 12-Cus., dated 16th February, 1976 exempting glass shells for manufacture of TV picture tubes from basic duty of Customs in excess of 60% ad valorem. In the circumstances, it was urged that the benefit of the notification should be extended to the subject consignment.
4. Shri Sachdeva, appearing for the appellants, submitted that he had nothing to add to the written submissions in the Revision Application and the revision application might be disposed of on the basis of the evidence on record.
5. Shri N.V. Raghavan Iyer, appearing for the Respondent, conceded that the fact of short-supply of 125 glass tubes in the original consignment had been satisfactorily established and that he had no submissions to make on this aspect of the appeal. As regards the applicability of Notification No. 12-Cus dated 16th February, 1976, Shri Iyer submitted that the importation of the present consignment was in the month of August, 1974 and, therefore, the benefit of the exemption notification issued much later than this date would not be applicable to the present goods. He also urged that the claim for re-classification of the goods under Item 73(2) of the ICT was not tenable having regard to the scope of the said item; the imported goods were only glass shells which had yet to be fabricated into TV picture tubes and, therefore, could not be considered as parts of wireless reception apparatus.
6. The Tribunal has carefully considered the submissions of both the parties. The fact of short-supply of 125 glass tubes in the original consignment cleared vide Bill of Entry Cash No. D 1966 dated 29-8-74 has been satisfactorily established by the documentary evidence on record. The Department has also conceded this aspect of the matter. The Tribunal, therefore, allows the appeal on this ground and directs that the Customs authorities at the Port of Madras shall refund the duty involved to the appellants within a period to two months from the date of communication of this order.
7. Turning to the second ground, the Tribunal observes that the notification exempting glass shells for the manufacture of TV picture tubes from basic duty in excess of 60% ad valorem was notified on the 16th February, 1976. Exemption notifications issued under the Customs Act or its predecessor Sea Customs Act do not have retrospective application and, therefore, the notification in question would not apply to the present goods which, as stated earlier, were imported and cleared through the Madras Port in the month of August, 1974. Further, glass shells which had yet to be fabricated into TV picture tubes cannot be considered to be parts of wireless reception apparatus and, therefore, would not qualify for classification under Item No. 73(2) of the ICT. The classification made by the Customs authorities of the present goods under Item 60 of the ICT read with Item No. 23-A(4) of the Central Excise Tariff Schedule is in order. This ground of challenge is rejected.
8. The appeal is thus partly allowed in the light of directions given above.