Customs, Excise and Gold Tribunal - Delhi
Collector Of Customs vs Lalit Impex on 23 April, 1996
Equivalent citations: 1996(85)ELT365(TRI-DEL)
ORDER
S.K. Bhatnagar, Vice President
1. This is an appeal filed by the Department against the order-in-appeal passed by the Collector of Customs (Appeals) Bombay dated 11-2-1986. A notice for today's hearing was sent to the respondents and they have replied vide their letter dated 16-4-1996 stating inter alia that no personal hearing is necessary for he hearing of the appeal and the matter may be decided on the basis of the documents enclosed by them.
2. We have, therefore, perused the case records and the documents filed by the respondents and heard the learned DR.
3. Learned DR stated that it was a case of importation of a consignment of loud speakers. The goods were assessed under Tariff Item 33F(ii) of Central Excise Tariff for the purpose of additional duty.
4. The importers subsequently filed application for refund on the ground that the goods were classifiable under Tariff Item 68 and should be reassessed accordingly. The claim was rejected by the Assistant Collector but the appeal against this order was allowed by the Collector (Appeals).
5. In this connection, he would draw attention to the TI 33F as it stood during the relevant period.
6. This TI covers musical systems commercially known as stereo or hi-fi systems includes speakers and speaker systems housed in acoustically designed enclosures which are ordinarily used as attachments with stereo or hi-fi systems for type of music players mentioned in the tariff.
7. Learned Collector (Appeals) has set aside this order on the ground that the speakers were not housed in acoustically designed enclosures. But he has done so apparently without perusal of the bill of entry and other records because according to the Department, bill of entry shows that the samples of the goods imported had been called and inspected in the presence of party's representative and a specific mention was made to the effect that the speakers are enclosed in acoustically designed enclosures.
8. In the grounds of appeal at this stage, it was therefore, their contention that the learned Collector has not taken into account this evidence and has gone purely on the basis of theoretical explanation given by the importers.
9. In response to queries of the Bench, the learned DR drew attention to the catalogue filed by the respondents along with his letter dated 16-4-1996 stating that it shows the model EAB-906N.
10. There is no reference in the order of the Assistant Collector but it finds mention before the Collector (Appeals) and in the pamphlet/ catalogue enclosed by them. The particulars given in the catalogue are not helpful to determine whether the parameters of the Item 33F were satisfied or not.
11. Similarly the letter of JCCI enclosed by the importer along with his letter dated 16-4-1996 also does not relate to the consignment in question. It has been apparently issued with reference to a case pertaining to Atlas Radio Traders and not the respondents and this reference in no way helps to resolve the issue, and the same is true of the letter of the President of the All India Radio and Electronic Association enclosed by the respondents.
12. Learned Collector (Appeals) has also distinguished speakers and the speaker systems but the Tariff Item 33 F covers both the speakers and speaker systems.
13. In responses to further queries from the Bench learned SDR stated that in the appeal memorandum stated that bill of entry has been enclosed. But there is no bill of entry in the records.
14. We have considered the above submissions and we find that the order-in-original is very sketchy. It is also incorrect in observing that it is material whether they were or were not housed in acoustically designed enclosures as TI 33F(2) specifically refers to speakers and speaker systems used in acoustically designed enclosures.
15. Learned Collector (Appeals) is right in taking this parameter into account but has erred in not indicating the basis of his findings that the items as imported were not housed in acoustically designed enclosures. He has not referred to the bill of entry. The Department's appeal refers to the examination report on the bill of entry, the examination of a sample in the presence of the representative of the importer and states that on the bill of entry it is mentioned that it was housed in acoustically designed enclosures. But in the absence of the bill of entry the factual correctness or otherwise of this assertion by the Department remains unverified before us. The Department should have taken care to produce relevant bill of entry. The learned DR is right stating that the intention was to produce it but it remained to be attested due to clerical error.
16. We also observe that the learned Collector (Appeals) has examined only one of the parameter and not all of the characteristics which will govern 33F(ii) entries as it stood during the relevant time. This entry is reproduced below:
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Item No. Description of goods Rate of duty
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33F Musical systems commercially known as stereo
or hi-fi systems, namely
1. Stereo; or hi-fi amplifiers 4O%adv.
2. Speakers and speaker systems housed in 40% ad valorem
accoustically designed enclosures which
are ordinarily used as attachments with
stereo or hi-fi systems or with radios
(including transistor sets), tuners,
radiograms, gramophones (including record
players) and tape recorders or players
(including cassette recorders or players)
having in built stereo devices.
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This shows that not only the speakers and speaker systems should not only be housed in acoustically designed enclosures but must also be such which are ordinarily used as attachments with stereo or hi-fi systems or with radios etc. mentioned in the entry. In other words, only such speakers or speaker system which satisfy all these parameters would fall under this entry. A clear and specific finding in this regard has neither been given at the original stage nor at the first appellate stage and in the absence of bill of entry and other relevant material, it is not possible to come to a specific finding at this stage. The matter is pretty old and we are reluctant to remand but in the circumstances there is no other go. Since neither the order of the Assistant Collector nor the order of the Collector (Appeals) covers all the relevant aspects, we set aside the impugned orders and remand the matter back to the Assistant Collector for de novo adjudication in accordance with law with the direction that he should ensure that all the relevant characteristics and parameters of relevant TI 33F are duly taken into account with reference to the bill of entry and such other material as may be placed before him at the time of readjudication. He should give an opportunity of hearing to the respondents and allow them to produce the relevant material before passing any final order.