ORDER
S.L. Peeran, Member (J)
1. This appeal arises from Order-in-Appeal dated 15-9-1989, passed by the Collector (Appeals) confirming the rejection of refund claim for Rs. 5,94,305.14 in respect of Bill of Entry No. I-919, dated 18-1-1988, seeking reclassification of filters (oil filter other than fuel filter) (for ICP engine) (Int. with M/B) which had been originally classified under 8421.29 of the CTA read with Notification No. 320/87-Cus. The appellants had claimed the benefit of Notification No. 59/87-Cus., dated 1-3-1987 which was rejected by the Assistant Collector on the ground that in terms of Clause (ii) of the said Notification the benefit cannot be given if the filters are inter-changeable with parts of motor vehicles. He has also held that the appellants had not protested about the original assessment which was based on physical examination of the filter in question and therefore, the benefit will be hit by provision of Section 149 of the Customs Act, 1962. The Learned Collector in his order has held that the goods were assessed on the basis of declaration made under Section 46 of the Customs Act, 1962 by which the goods imported had been declared as oil filter (and inter-changeable with motor vehicle) for ICP engine. He has held that the importer had signed on the reverse of the Bill of Entry regarding the truth of the contents and declaration. Therefore, he has held that the plea that wrong declaration in the Bill of Entry given by the clearing agents of the importer is not tenable. The said declaration was also confirmed by the Shed Appraiser (proper Customs Officer) on physical verification before clearance of the same under Section 47 of the Act. He has held that since the goods had already left the Customs control and therefore, there is no scope to re-examine the same for further verification by the department and hence he has rejected the claim as unsubstantiated.
2. The appellants in this appeal are contending that as per catalogue the items were meant for use in the transmission line and Allison Dumper and that they were not capable of being vised as fuel/oil filter for internal combustion engine and therefore, they are correctly assessable to duty under Heading 8421.29 read with Notification No. 59-Cus/87, dated 1-3-1987 and 320-Cus/87, dated 19-4-1987 at 45% plus 45% auxiliary duty plus nil c.v.d. It is also stated by them that the goods were meant for transmission line and were used for filtering the transmission oil in gear box, and not in the internal combustion engine. The catalogue could be correlated with the goods imported with reference to the parts Nos. mentioned in the invoice. The filters used in the transmission line are of a different sizes and designs than the filters in the internal combustion engine. It is stated that if these are not fuel filters then they cannot be considered as filters for internal combustion engine. It is stated by them that Section 149 stipulates that no amendment of Bill of Entry after the imported goods had been cleared for home consumption shall be authorised except on the basis of documentary evidence which was in existence at the time the goods were cleared. It is stated by them that there is no absolute bar in amendment of the Bill of Entry in case it is proved by documentary evidence, which existed at the time of clearance of the goods that the declaration made was not correct. It is stated by them that the catalogue for the goods clearly showed that the goods were meant for transmission line and not for fuel filters. These filters being other than fuel filters are not filters for internal combustion piston engine. Therefore, they are entitled to the benefit of the Notification. It is also stated by them that the view of the Collector expressed inasmuch as that the declaration made on the reverse of the Bill of Entry cannot be verified after the goods have been cleared from the Customs control could mean that in no case where the goods had been cleared from the Customs control and importer could file a claim for refund of duty under Section 27 of the Customs Act. Such a reasoning is not justifiable.
3. We have heared the Learned Consultant, Shri N.C. Sogani for the importer and the Learned DR, Shri K.K. Jha for the Revenue.
4. The Learned Consultant argued on the basis of grounds of appeal and further added that the refund is being claimed on the basis of the declaration made in the Bill of Entry itself and that there was no amendment sought to the declaration after the clearance of goods as has been understood by the lower authorities. It is his submission that the document clearly indicate that the item is a filter i.e. oil filter other than fuel filter and the same is not used in the ICP engine but they are used for filtering the transmission oil in gear box. It is his submission that the goods clearly fall within the Serial No. 16, of the Notification which covers Heading 84.21 with the description :
"16. 84.21 Goods falling under sub-heading Nos.
8421.11, 8421.12, 8421.19, 8421.22
filtering or purifying machinery
and apparatus for liquids other than
fuel filters for internal combustion
piston engines, filtering and
purifying machinery and apparatus
for gases other than air filters,
and electrostatic precipitators
designed for industrial use."
Pointing out to the description in Sr. No. 16 of the Notification, the Learned Consultant submits that although sub-heading 8421.29 is not mentioned therein yet they are covered under the description “filtering and purifying machinery and apparatus for liquids”. He points out that what is excluded is only “fuel filters for internal combustion piston engine”. He submits that the item is not a fuel filter for internal combustion piston engine and therefore, it is not excluded from the description of the Notification.
5. The Learned DR points out that only goods which are specifically falling under the sub-heading indicated in the description of the Notification in Sl. No. 16 alone would be entitled for benefit. He points out that 8421.29 has not been mentioned and it is not the case of the appellants that the item would fall in any of the sub-headings indicated in the Sl. No. 16 of the Notification. He submits that the item is admittedly a filter and no distinction between oil or fuel filter can be made in the facts and circumstances of the present case, in the nature of the description of the goods and more particularly because the goods have left the Customs control and no inclusion of the goods can be done at that stage. He also submits that the catalogue produced by the appellants does not indicate that the item is used in transmission line and not in the internal combustion engine. He points out to the Bill of Entry, where there is a declaration in brakets as “for ICP engine inter-changeable with motor vehicle”. He submits that this description clearly indicates that the item was an inter-changeable filter with motor vehicle as well, and in motor vehicles only fuel is used. Therefore, it is his submission that the finding given by the lower authorities that the provision of Section 149 of the Customs Act applies to the facts of the case is sustainable. He submits that now the importer is making a different claim than what has been declared in the Bill of Entry and once the goods had left the Customs control such a claim cannot be verified with the help of the documents. He further submits that the Hon’ble Supreme Court has so held in the case of All India Glass Manufacturers’ Federation v. Collector of Customs as reported in 1991 (55) E.L.T. 5 (SC) and in view of this ruling the appellants have no case to sustain.
6. We have carefully considered the submissions made by both the sides and have perused the records. The first ground on which the claim is rejected is that the goods have left the Customs control and that the appellants’ claim is hit by Section 149 of the Customs Act inasmuch as which stated as follows :-
“149. Amendment of documents :- Save as otherwise provided in Sections 30 and 41, the proper officer may, in his discretion, authorise any document, after it has been presented in the customs house to be amended.
Provided that no amendment of Bill of Entry or a shipping bill or bill of export shall be so authorized to be amended after the imported goods have been cleared for home consumption or deposited in a warehouse, or the export goods have been exported, except on the basis of documentary evidence which was in existence at the time the goods were cleared, deposited or exported, as the case may be.”
7. The above section refers to the provision of Sections 30 and 41 which refers to delivery of import manifest or import report. Sub-section (2) of Section 30 states that the person delivering the import manifest or import report shall at the foot thereof make and subscribe to a declaration as to the truth of its contents. Sub-section (3) states that if the proper officer is satisfied that the import manifest or import report is in any way incorrect or incomplete, and that there was no fraudulent intention, he may permit it to be amended or supplemented.
8. Section 41 refers to delivery of export manifest or export report which also has similar provision.
9. Save as what has been stated in the Sections 30 and 40, Section 149 grants discretion to the proper officer to authorise any document, after it has been presented in the Customs House to be amended but such amendment shall not be authorised after the imported goods have been cleared for home consumption or deposited in a warehouse or the export goods have been exported, except on the basis of documentary evidence which was in existence at the time the goods were cleared, deposited or exported, as the case may be.
10. In the present case, the appellants are stating that the goods imported are meant for transmission line” and not used in the internal combustion engine. It is very clear that the appellants are totally seeking a different declaration than what has been declared in the Bill of Entry as has been stated above in the preceding paragraphs. The declaration in the Bill of Entry clearly indicates that they were filters and in the brackets they had stated that ‘oil filters other than fuel filters’ but at the same time it is stated for ICP engine inter-changeable with motor vehicles. This description gives an idea that the item is a filter to be used in internal combustion engine and it is inter-changeable with motor vehicles. This description does not indicate that the item is an oil filter to be vised only in transmission line in gear boxes of Allison Dumper. Therefore, the finding of the lower authorities that the claim of the appellants fall within the mischief of Section 149 is sustainable. It is also observed the catalogue produced by the appellants does not clarify that the item is used in transmission line in gears and it is not inter-changeable as fuel filter in ICP engines.
The finding given by the lower authorities that the goods have left the Customs control and the same cannot be verified is sustainable, in view of the Hon’ble Supreme Court’s judgment cited by the Learned DR. It is further noticed that the Sl. No. 12 does not refers to sub-heading 8421.29 under which the present item has been classified. The Learned Consultant submitted that it is a filtering or purifying machinery and hence it is entitled for the benefit. As we have held that the declaration indicated that it is a fuel filter for internal combustion piston engine, the claim made by the appellants is not supported by evidence and it cannot be verified at this stage. The Learned DR also relied on M/s. Steel Strips Ltd. as per Final Order No. C/110-111/96-B, dated 6-8-1996 wherein this Bench applied the ratio of All India Glass Manufacturers Federation v. Collector of Customs, (supra) and rejected the claim of the appellants, in the following terms as in Para 4 which is noted herein below :-
“4. We have heard both sides. Admittedly no defects were found during examination of the goods. From the records it is seen that importers representative was also present at the time of examination. It was held by the Hon’ble Apex Court in the case of All India Glass Manufacturers Federation (supra) that when the value is assessed on the basis invoice price and the goods are cleared the implication is that no remission is allowed and no abatement has been occasioned. The question of redetermining the value of the imported goods could arise only in case where such damage or deterioration before the clearance is proved to the satisfaction of the proper officer. Hon’ble Apex Court also held that it cannot be said that damages received represents the difference in price that had been paid and that ought to have been paid when the seller had agreed to compensate the buyer for the quality of the goods imported, the buyer does not get the right to claim abatement of duty on assumption that the real price was something less than what has been indicated in the invoice. Following the ratio of this judgment, we uphold the impugned order and reject the appeals.”
11. In view of the findings given by us in the preceding paragraphs, we do not find any merit in this appeal and we reject the same.