Customs, Excise and Gold Tribunal - Delhi
C.C.E., Pune vs M/S. Philips India (Peico Electronics & ... on 2 November, 2000
ORDER K.K. Bhatia, Member (T)
1. This is a Revenue appeal filed against the Order dt. 24.10.94 of Commissioner (Appals), Pune. The brief facts of this case are that the respondents manufactured excisable goods falling under Chapter 85. They filed Classification List No. 52/90-91 effective from 25.5.90 and No. 53/90-91 effective form 30.5.90 in respect of the following goods manufactured by them:
(i) "15 AW 505/OOR Home stereo System" (consisting of Radio and Amplideck) classified under Central Excise Tariff Heading 8527.00 claiming duty @ 25% Adv. Basic + Special duty as per Notfn. No. 87/89 dated 1.3.89 as amended by Notfn. No. 71/90 dt. 20.3.90.
(ii) "15 AW 606/OOR Home Stereo System" (Consisting of Radio and Amplideck), classified under Cental Excise Tariff Heading 8527.00, claiming duty @ 25% Adv. Basic + Special duty as per Notfn. No. 87/89 dated 1.3.89 as amended by Notfn. No. 71/90 dt. 20.3.90.
2. Both the above Classification Lists were approved on 9.8.90. Pending approval of these Classification Lists, the party filed a revised Classification List No. 83/90-91 on 24.7.90 in respect of both of the above products claiming levy of duty @ 20@ Adv. Basic + Special duty under the same notification. The party filed Classification List No. 37/91-92 and 38/91-92 on 22.4.91 further claiming effective date with retrospective effect of 25.5.90 and 30.5.90 in respect of same item, claiming the rate of duty @ 20% Adv. Basic + Special duty under the same notification. They also filed the Classification List No. 36/91-92 w.e.f. 15.4.91 in respect of another product - "15 AW 608/OOR Double Deck Midi System classified under Central Excise Tariff Heading 8527.00 and claiming rate of duty @ 20% Adv. Basic + SD under the same notification.
3. The respondents were issued a show cause notice dt. 14.5.92 calling upon them to show cause why all the above products should not be subjected duty leviable @ 25% Adv. Basic + SD.
4. On considering the reply of the party, the Ass.t Commissioner of Central excise, Pune V Division vide his Order dt. 29/30.9.33 ordered that all the above stated three models were liable to duty @ 25% Adv. Basic + SD as per Sl. No. 1 of the Noftn. No. 87/89 as amended by Notf. No. 71/90 and approveds the Classification Lists with the modification. The Asst. Collector vide his Order dt. 11.5.94 also rejected the refund claim of Rs. 19,87,364/- filed by the party by their claim dt. 24.4.91. The party filed appeals against the above orders of the Asst. Collector and the Commissioner (Appeals), Pune vide his Order dt. 24.10.94 held that all the afore-mentioned products were covered by Sl.14 of the said notification and were subject to duty @ 20% Adv. Basic + SD. The Commissioner (Appeals) in his order further directed that the Asst. commissioner vide his Order-in-Original No. 57/94 dt. 11.5.94 had rejected the refund claims filed by the party on the basis of his Order-in-Original dt. 30.9.93 holding that the duty is payable 25% and a such, no refund of duty is payable to them. The Commissioner (Appeals) observed that since the duty payable on these products was @ 20% Adv., matter was remanded back to the Asst. Commissioner for considering the refund claims under the provisions of Section 11 B of the Central Excise and Salt Act, 1944.
5. The Revenue are in appeal against the above order of the Commissioner (Appeals). We have heard Shri Sheo Narayain Singh, SDR for the appellants and Shri V. Lakshmi Kumaran, Advocate for the respondents. We have considered the submissions made by both the sides. The rival entries in the Exemption Notfn. No. 87/89 dt. 11.3.89 is amended by Notfn. No. 71/90 dt. 20.3.90 providing concessional rate of duty in respect of the impugned items are reproduced below:
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Sl. No. Chapter head Descriptional of Rate Conditions
ing of Sub- goods.
heading No.
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1. 8518.00 Cassette deck, ampli- 25% Adv. --
or fier equalizer fre-
8519.00 quency synthesiser
or or any combination of
8520.00 aforesaid items desi-
or gned for use as or in
8527.00 audio system.
or
8543.00
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14. 8527.00 Reception apparatus 20% Adv. --
for radio broadcast-
ing, whether or not combined in the same housing, with sound recording or reproducing apparatus or a clock (other than those covered by Sr. No. 1 above).
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6. Admittedly, all the three items under consideration have reception apparatus for radio & broadcasting as one of the feature in the system. The Commissioner (Appeals) in his order has observed that Sl. 1 of the notification is applicable to Cassette deck, amplifier, equalizer, frequency synthesiser or any combination of aforesaid items designed fro use as or in audio system; that the appellant emphasized that their products are radio recorder and they are not used as or in audio system and they are also not known to the market as audio system; that it has been admitted by the Asst. Collector that the products are having the feature of tow-in-one. In that circumstances, the contention of the appellant has force, as there is no mention of a radio apparatus in the description at Sr. No. 1 of the notification that their product will be covered by Sr. No. 14 of the notification, as serial No. 14 covers the items other than those covered by Sr. No. 1. The Commissioner has observed that a notification has to be read as a whole while interpreting it. If the appellant is within the plain terms of the notification he cannot be denied its benefit. Sr. No. 1 of the notification is silent about the reception apparatus and as the products of the appellants have a reception apparatus also, their products is - 'other than those covered by Sr. No. 1 of the 'Notification' and will attract concessional rate of duty as per Sr. No. 14 of the said Notification.
7. During the course of hearing, Shri V. Lakshmi Kumaran, Advocate for the respondents further relied on the decision of the Tribunal in the case of M/s. Philips India Ltd. vs. CCE, Pune reported in 1996 (81) ELT 375 (T). The ratio of this is followed in another decision of the Tribunal in the case of M/s. A.M. Electronics Corporation vs. CCE, Pune reported in 1999 (114) ELT 979 (T). Under consideration in these decision - was the entry at Sl. No. 10A to Notfn. No. 56/93-CE dt. 28.2.93 viz., 'Ratio sets including transistor sets". The items manufactures by the party were the Ratio Sets having in built facility of sound recording and reproducing. They were denied the benefit of this notification. However, the Tribunal in its decision (supra) held as follows :
"There is no doubt that the goods manufactured by the appellants is for the purpose of reception of radio broadcasting. But, at the same time, it is fitted with the equipment which will record sound and is fitted with mechanism of reproducing the same. The question is, merely because of the fact that it is fitted with sound recording or reproducing apparatus, can it be taken away from the purview of the Notification No. 56/93, dated 28.2.1993. In order to appreciate this contention, what is necessary to be seen is whether the goods manufactured by the appellants is capable of being used as receptive apparatus for radio broadcasting. As far as this point is concerned, it is admitted fact that the goods manufactured by the appellants, have capacity of reception of the radio broadcasting. Therefore, when the goods manufactured by the appellants are capable of receiving the broadcasting as per the entry at Sl. NO. 10A of the notification, the same cannot be taken out or its purview merely because it was also fitted with a sound recording or reproducing apparatus".
8. We are of the view that the proposition under consideration in the present proceedings is fully covered by the ratio of the above said decision of the Tribunal. We accordingly uphold the findings of the Commissioner (Appeals) that the impugned items would be covered by Sr. No. 14 of the notification and be subjected to duty @ 20% + SD. The Revenue appeal therefore, is rejected. The matter now shall go back to the original authority for considering the refund claim of the party as per law, it is, however, clarified that the concessional rate of duty @ 20% Adv. Basic + SD shall be available to the appellants with effect form the dates on which they had filed the concerned Classification List claiming this rate of duty for their products and they will have no retrospective effect.