M/S Preston Engg. Co. (Delhi) Pvt. Ltd vs Cc, New Delhi

[Arising out of Order-in-Appeal No. CC(A)/I&G/41/2010 dated 20.4.2010 passed by the Commissioner of Customs, (Appeals), New Delhi]

For Approval & Signature :

Honble Mr. Ashok Jindal, Member (Judicial)

Honble Mr. R.K. Singh, Member (Technical)

1. Whether Press Reporter may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?

2. Whether it would be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?

3. Whether their Lordships wish to see the fair copy of the order?

4. Whether order is to be circulated to the Department Authorities?

M/s Preston Engg. Co. (Delhi) Pvt. Ltd. Appellant

Vs.

CC, New Delhi Respondent

Appearance:

Shri Prabhat Kumar, Advocate - for the Appellant

Shri Amresh Jain, D.R. - for the Respondent

Coram : Honble Mr. Ashok Jindal, Member (Judicial)

Honble Mr. R.K. Singh, Member (Technical)

F. Order No. 50893/2015

Per R.K. Singh :

Appeal has been filed against the Order-in-Appeal dated 20.4.2010 which upheld the order-in-original dated 10.2.2010 in terms of which the benefit of Notification No. 21/2002-Cus dated 1.3.2002 (Sr. No. 244) was denied on the ground that the goods imported were not connectors, rejecting the contention of the appellants that the goods were actually connectors imported in CKD condition and that by simple pliers can be assembled into connectors. The appellants have taken the same plea before us.

2. We have perused the connected papers. We find that in this very case in the earlier order-in-original dated 16.12.2009 the adjudicating authority clearly held as under:

The samples were seen. The items are in the form of components and put together may form a connector but as such they are not in a identifiable product as a connector. This may require a simple hand assembly or pliers as stated by the importer in their letter but the item has not attained its character as a connector as some more process is required to call it a connector. Even packing/labelling is also called to undergo before calling them a connector. The identifiability of this product at the time of import is only can say components and after a simple process whatever they may call is required to call it a connector.

3. The Commissioner (Appeals) in his order dated 18.1.2010 (passed in respect of the said order-in-original dated 16.12.2009) recorded his observation as under :

It is the contention of the appellants that they have imported connectors only, but they are in unassembled form. From the aforesaid examination report, it is not clear whether the parts contained in plastic bags would form a complete connector in unassembled form or not. This fact is required to be examined again because if each plastic bag contains parts of a complete connector, then by virtue of Rule 2(a) of the Rules for the interpretation for the Schedule to Customs Tariff Act, it will be treated as connector and in view of the aforesaid circular of the Board, the denial of the benefit of the said notification would not be legal. If it is otherwise, the benefit cannot be extended to the impugned goods. This aspect has also not been examined by the adjudicating authority. Since this a matter of fact and is required to be looked into by the assessing officer, the matter required to be remanded back.

4. In the impugned order dated 20.4.2010 it is seen that the original adjudicating authoritys findings have been recorded as under :

The goods were examined in the light of the directions of the Appellate Authority and found to be parts of connectors which do not form an essential character of a connector. This is a fact and was reconfirmed by the re-examination report dated 30.1.2010.

The re-examination report dated 30.1.2010 referred to above by the adjudicating authority as reproduced in the impugned order reads as under :

There are six packages containing parts made up of plastics, steel and rubber as their base material. These are contained in 6 types of transparent poly bags.

1. One type of poly bag contains 6 kinds of parts, all in equal numbers and each kind is further packed in smaller poly bags separately.

2. And same report as above except the kind/type numbers.

5. As is evident from the re-examination report, the contention of the appellants that what they imported was connectors in CKD condition and that the imported goods were assemblable into connectors by simple pliers is not negated thereby. The appellants contention is also in conformity with the finding recorded by the original adjudicating authority in the order dated 16.12.2009 (reproduced in para 2 above). The Commissioner (Appeals) has agreed that by virtue of Rule 2(a) of the General Rules of Interpretation in such a situation the goods will be treated as connectors. In view of the foregoing, we are of the view that the contention of the appellants cannot not be upheld particularly when it is in complete harmony with the factual finding of the original adjudicating authority recorded in the order-in-original dated 16.12.2009 and even the re-examination report. Consequently, the appeal is allowed with consequential benefits.

(Ashok Jindal)

Member (Judicial)

(R.K. Singh)

Member (Technical)

RM

4