ORDER
G. Sankaran, Vice-President (J)
1. M/s. Birla Jute Manufacturing Company Ltd., Calcutta, filed a single Revision Application before the Central Government under Section 131 of the Customs Act, 1962, as it stood at the material time, against Order No. 1893-1894/1979 dated 26-7-1979 passed by the Appellate Collector of Customs, Calcutta. On the setting up of this Tribunal, the Revision Application was transferred to it under Section 131B of the Customs Act for disposal as if it were an appeal filed before the Tribunal. Since the Appellate Collector’s order had disposed of two appeals before him, the appellants were asked by the Registry to file a supplementary appeal, which they have done. Both appeals involve similar issues and are being dealt with together in this order.
2. The facts, briefly stated, are that the appellants exported two consignments of carpet, backing cloth – 20 rolls by SS HOEGH ELITA and 10 rolls by SS NEDERWESER – through the Calcutta Port. In accordance with the Ministry of Finance (Department of Revenue & Insurance) Notification Customs No. 123/72, dated 1-11-1972, which was in force at the time of export of the goods, hessian cloth-carpet backing weighing 9 oz. or more per sq. yd. was liable to be charged to export duty at Rs. 300 per tonne and carpet backing not falling within the said description, at Rs. 700 per metric tonne. The Customs authorities charged duty on the two consignments at Rs. 300 per M.T. on the basis of the exporters’ declaration pending submission of the related A.R. 4 forms. Subsequently, however, it appeared to the Customs authorities, on the basis of the calculations in the A.R. 4 forms and connected documents, that the weight of the exported carpet backing was below 9 oz. per sq. yd., and, therefore, should have been charged to export duty at Rs. 700 per M.T. Accordingly, two show cause notices were issued to the exporters calling upon them to show cause why the differential duty should not be recovered from them. The explanation was that the practice was to declare the total weight of the consignment in round figures, fractions of a kilogramme in the total weight being omitted. If the decimal points were taken into account, the weight of the exported goods would not fall below 9 oz. per sq. yd. The experters were given an opportunity to produce A.R. 4 forms duly corrected by the Central Excise authorities. However, the exporters stated during the personal hearing that they were not in a position to produce the amended A.R. 4 forms, as the Central Excise authorities did not accept their request for amendment. In the circumstances, the Assistant Collector of Customs confirmed the demand for short levy amounting to Rs. 4,338.12 in the case of the consignment of 20 rolls and and Rs. 2,117.69 in the case of the consignment of 10 rolls. In their appeals before the Appellate Collector of Customs, Calcutta, the exporters stated that the contract with the foreign buyer was for supply of goods of weight 9 oz. per sq. yd., the goods were sold as of weight 9 oz. and payment was also received as for 9 oz. and, therefore, the goods should be treated as of 9 oz. weight. It was, however, admitted before the Appellate Collector that if the weight of the goods was calculated on the basis of the declaration in the A.R. 4 forms, the weight per sq. yd. would be 8.999 oz. per sq. yd. But their argument was that, for all practical purposes, 8.999 oz. should be taken as 9 oz., which was the basis on which the contract for supply was drawn up and executed. However, these contentions did not find favour with the Appellate Collector, who rejected the appeals.
3. Before us, Dr. Gauri Shankar, Advocate, assisted by Mrs. Hemantika Wahi and Shri Manoj Arora, Advocates, represented the appellants and Shri K.C. Sachar, JDR., the respondent. It was submitted with reference to Indian Standards Specification No. IS:4900/1969 (“Specification for jute carpet backing fabric”) that according to Table I, the tolerance permitted in respect of jute carpet backing fabric of 305 gms./sq. metre (9 oz. per sq. yard) was ± 0.045 ozs. per sq. yd. If this tolerance is kept in view, it would be evident that the figure of 8.999 taken into account by the lower authorities on the basis of the declarations in the A.R. 4 forms would stand rounded up to 9 oz. per sq. yd.
4. Shri K.C. Sachar, Departmental Representative, submitted that the application of the tolerance, if any, and re-calculation of the weight, might be left to the Collector.
5. We have carefully considered the submissions. When the Indian Standards Specification itself allows a tolerance of ± 0.45 oz. per sq. yd., we see no reason why the matters should be sent back to the Collector for a fresh determination. Applying the tolerance figure, 8.999 would stand rounded up to 9. The goods exported thus correctly attracted export duty at Rs. 300 per M.T. only. The demands for Differential duty on the basis that the goods weighed less than 9 oz. are not sustainable. In the result, the impugned order is set aside and the appeal allowed with consequential relief to the appellants.