Customs, Excise and Gold Tribunal - Tamil Nadu
Xl Telecom Ltd. vs Cc, Hyderabad on 23 July, 2001
ORDER
Shri S.L. Peeran
1. This appeal arises from the order in Appeal No. 26/96 (H)CUS dated 30.09.96 passed by the Commissioner (Appeals), Hyderabad by which he has confirmed the order in original passed by the Assistant Commissioner classifying the product 'Hot Melt Adhesive/Polyamide Resin' under heading 3908.90 of the Customs Tariff Act, 1975 by applying Note 6(b) of Chapter 39 which describes with expression primary form which includes granules and since the item was found to be in primary form the classification of the item has been held to be under chapter 39 and accordingly he rejected the prayer of the appellant for classifying the goods under heading 85.47 in terms of the judgement of the Hon'ble High Court in the appellants' own case, reported in 1994 (70) ELT 530.
2. The learned Commissioner (Appeals) has taken note of the Hon'ble High Court of Bombay judgement and has distinguished the same on the ground that it has mainly dealt with the classification of the Heat Shrink Sleeves and not Polyamide Resin which is used in the manufacture of set sleeves.
3. Shri S. Ravi, the learned Counsel appearing for the appellant submitted that the Commissioner (Appeals) was not justified in distinguishing the judgement of the Bombay High Court (supra) in their own case as the item was another component of cable jointing kit. He submitted that the Bombay High Court has categorically held that if the item has got components of cable jointing kits they are ousted from the purview of Chapter 39 and requires to be classified under heading 85.47. He has drawn our attention to para of the judgement of the Bombay High Court which is reproduced below:
In most of the Bills of Entry the subject articles are described as components for cable jointing kits. We find that in one or two bills, the articles have been described as Raw material for manufacturing of components for cable joints kits, - Insulating materials - unexpanded sleeves. The respondents contend that at least these items merit classification under Chapter 39. We do not agree. Even raw material for manufacture of components of cable jointing kits cannot be classified as general plastics article under omnibus Heading 39.26. They are also insulating material capable of automatic shrinking to pre-determined diameters by a single operation of hearing. Heading 85.47 is more akin to these articles than Heading 39.26.
4. The learned Counsel submitted that on the basis of the above extracted portion of the Bombay High Court judgement, the learned Commissioner (Appeals) has over looked this basic finding and has fallen in error in classifying the item under chapter 39. He has also filed application for additional evidence in the form of "Typed approved certificates" issued by the Departments of Govt. of India i.e. Telecommunication Engineering Centre (Department of Telecommunications). He has also relied upon the Supplier's certificate who have certified that the item supplied are exclusively designed for use in the manufacture of Heat Shrink Sleeves, which is the main component of Telecom cable joining kits. He has also relied upon another manufacture's certificate i.e. Certificate issued by Sanva Chemical (Singapore) Pvt. Ltd. dated 7.12.1999. Further the appellants have also relied upon the certificate dated 27.03.2000 issued by the Department of Telecommunications Telecommunication Engineering Centre Hyderabad. Therefore, he submitted that the item imported is not hit by Note 6 of Chapter 39 and is required to be classified under heading 85.47 in terms of this observation of the High Court of Bombay.
5. The learned DR takes preliminary objection on the ground that the application is for producing additional evidence. This evidence had not been produced before the lower authorities. He, therefore, submits that this evidence cannot be admitted for the purpose of considering the appellants' plea. He pointed out that Commissioner (Appeals)' finding that the Bombay High Court in the appellants' own case held that the components of plastics in the nature of articles of plastics fall under heading 39.26 while in the present case, the item is in primary form which is a raw material and hence note 6 applies.
6. Countering the above arguments the learned Counsel referred to the material on record to show that the item is not a raw material but a complete component as per the certificate issued by the suppliers and their competitors.
7. On consideration of the submissions made, we agree with the contention of the learned DR's preliminary objection that the material evidence produced is for the first time before the Tribunal and therefore, his objection is allowed and the matter is required to go back for examination as this material was not before the authorities below. The Assistant Commissioner has proceeded solely on the basis of Note 6 of Chapter 39. He has also distinguished the Bombay High Court judgement. The present material produced and the certificate issued by various Govt. departments as well as by the suppliers which clearly bring out the facts are required to be examined by the original authority. Therefore, we are of the considered opinion that the matter should go back to the original authority who shall examine the evidence now produced and record his findings by admitting this evidence and the appellants shall be afforded an opportunity of hearing to establish their plea that the item in question does not fall under Chapter 39. With the above observation the impugned order is set aside and the appeal remanded to the original authority for de novo consideration of the matter in accordance with law. The matter is thus allowed by remand with the above observations. Ordered accordingly.
(Dictated and pronounced in open Court)