Customs, Excise and Gold Tribunal - Mumbai
Commissioner Of Customs Acc, Mumbai vs M/S Black & Decker Bajaj Pvt. Ltd. on 4 May, 2001
ORDER G.N. Srinivasan, Member (J)
1. The question involved in this appeal is about Electric Hammer Drill is a consumer item or not.
2. The respondents assessee had imported hammer drill and they contended that it is not a consumer goods within the meaning of the term "consumer goods" as provided under paragraph 156 of the EXIM Policy 1992-97. They contended that the drill has the capacity to drill 13 (M.M.) holes on steel and concrete and it has a hammer action. They further contended before the authorities below:
(1) This drill has the Capacity to drill 13 (M.M.) holes on steel and concrete.
(2) This drill has a hammer action for high power drilling with a matching motor.
(3) This drill is used by professionals doing the above kind of work (i.e. Steel and Concrete).
(4) The person who uses this drill need to be trained specifically to handle the same.
(5) This drill will be made available to the professionals from the specific distribution points (like Iron and Steel Market, Building Material Market etc.) (6) This is a expensive tool which can be afforded only by the professionals since the pay back period will depend on the efficacy of the usage.
The adjudicating authority by order-in-original after referring to Paragraph 7 (12) of the Import and Export Policy, 1992-97 which defines consumer goods as "any consumer gods which can directly satisfy human needs without further processing and included consumer durables and accessories thereof" had held that the imported goods were consumer goods. Whereas Commissioner of Customs (Appeals)decided in favour of the importers. The Order-in-Original found that there has been violation of Section 111 (d) of the Customs Act and the goods were confiscated with an option to redeem the same Rs.65,000/- a penalty of Rs.10,000/- also imposed.
3. The adjudicating authority has followed the provisions of Paragraph 7(12) of the EXIM Policy. He has also referred to Public Notice No. 338/PN/92-97 dt. 2.1.96 which provided for importation of "Dlectric drilling machine (carpenter's tool) 10 MM BD-56". In the instant case it has been found by the adjudicating authority, that it is a 13MM two-gear drill. Therefore it will be in the category of Special Import Licence. As against this the Commissioner (Appeals)as held as follows:
"The appellant has pointed out that the imported item is not an ordinary domestic drill which can be easily used by all and sundries. In fact, the imported item is very heavy and is used with electrical connection and has a hammer drive which requires an expert to use this tool. Besides, this drill is not a general-purpose drill but is used only for construction works, industrial activities and shipbuilding. This is also evident from the catalogue and value-wise also I am quite convinced. Normally a drill of this type is not used in household. This is capital gods for carpenters and industrial workers. In fact, economically speaking, this is Intermediary Capital Goods. This position has been adequately clarified and confirmed in the policy itself. The drill of Consumer Goods Type, viz. Drill upto 10mm have been specifically taken out and given the facility of import under SIL. This evidently implies that no such restriction is envisaged in respect of Drill above 10mm. The imported Hammer Drill being of 13mm is therefore not Consumer Goods attracting the mischief of para 156. I accept the appeal for the added reasons that the ITC (HS) classification of Export and Import items published by the Ministry of Commerce (25-3-96) states that "Drill of all kinds are free item" (85.08-10-00). This complies with then implied fact that the drill above 10MM are not consumer goods and therefore, not restricted. Consequential relief should be granted to the appellant".
The Ld. DR would argue that the approach of the Commissioner(Appeals)is wrong is wrong in law on facts. The party has produced the catalogue which reads as follows:
ENGLISH EC Declaration of Conformity We declare that units:
KD795RE, KD79I1C, KD795cRE,KD791 Conform to: 89/392/EEC,89/336/EEC EN55014, 73/23/EEC,EN55104,EN50144 A wighted sound pressure 101 dB(A) A weighted sound power 114dB(A) Hand/are weighted vibration 7, 13 M/s2 Brain Cooke Director of Engineering Spennymoor, Country Durham DL 1656JG United Kingdom The literature of the party does not anywhere states that the imported item should be used by only professional and not by anybody else. I do not know in fact Commissioner (Appeals) in the impugned order has stated that the drill is not a general purpose drill and it should be only used construction works, industrial activity and ship building. I do not know how the Commissioner had come to that conclusion. There is no material under which he could have come to that conclusion and if there is any material if ought to have mentioned in the order itself.
4. Be that as it may Shri A. Natarajan in a very cajoling manner firmly pleads before me that the imported material cannot be handled by any house wife because it is quite heavy. I am not convinced of this argument. Heavy materials are being handled by women. In India there are lady employees in building industry who carry the goods on their head like pack of bricks with child on their waist. No doubt the instant matter it is not carrying the goods on head. But I am only mentioning this for the purpose whether lady in India can handled heavy loads. The literature of the assessee as nailed its own case. It is does not state anything about professional drill. In the absence of the same. I am of the view that the case of the respondents cannot be accepted, which means that the instant material does not require any processing for satisfying human needs. I am of the consider view it will squarely fall under the definition of consumer goods as given in Paragraph 7 (12) of the EXIM Policy 1992-97. I have also seen the drill and I am not of the view that any person can use it in immediately on purchasing the same. I therefore set aside the order passed by the Commissioner (Appeals) and restore the order made by the Dy. Commissioner. The appeal of the department is allowed.
(Pronounced in Court)