ORDER
S.K. Bhatnagar, Vice President
1. This is an appeal filed by the department against the order of the Collector (Appeals), Bombay dated 29-11-1985.
2. The respondents have sent a letter dated December 23,1995 in which they have requested waiver of personal appearance and disposal of the appeal on the basis of merit after repeating the submissions made before the Collector (Appeals).
3. The learned DR stated that in this case the respondents had imported “Spares for Safety Valves i.e. Springs”. At the time of clearance the bill of entry was assessed under heading 73.33/40 at the rate of 300% and the goods were cleared. The respondents subsequently requested for reassessment and refund on the ground that the rate of duty prescribed under heading 73.33/40(1) was 100% and not 300% and therefore, the mistake was required to be rectified. The Assistant Collector observed in his order that sub-heading (1) the heading 73.33/40 carries the rate of 100% but sub-heading (2) carries the rate of 300%. He called for the chemical composition of springs in question as the documents produced did not indicate the same but the importer or their agents did not respond. He found that their write up was not acceptable in the absence of manufacturer’s test certificate or relevant documents showing the chemical composition. This was necessary, because the rate of duty claimed namely, 100% was chargeable only on those cases where article was not make of stainless steel.
4. At the appellate stage, the Collector (Appeals) accepted the respondents petition on the ground that the classification having been shown under heading 73.33/40(1) at the time of original assessment, the rate of duty prescribed with reference to this sub-heading namely, 100% was required to be charged but it was charged erroneously at the rate of 300% which was prescribed with reference to the sub-heading (2) and not the sub-heading (1) of the heading 73.33/40.
5. The respondents have in their letter dated December 23, 1995 pleaded samething and supported the Collector’s order on the same grounds.
6. He would like to draw our attention to the department’s appeal memo and the statement of the facts and the grounds of appeal mentioned therein.
7. It was department’s contention that the appraiser had correctly written the rate of duty but had mistakenly mentioned the sub-heading (1) instead of (2). It is this error which was required to be rectified but no refund was due as the correct rate of duty was applied.
8. It was also his submission that since the appellants have not furnished the composition at any stage and have even now not submitted any documents to show the composition the benefit of 73.33/40(1) could not be extended and the rate applicable to 73.33/40(2) was required to be upheld. Hence, the appeal.
9. We observe that the learned DR is correct.
10. The heading 73.33/40 as it stood at the relevant time namely, 1982-83 reads as follows :-
"73.33/40 other articles of iron or steel
(1) Not elsewhere specified (a) 100% 40
(2) Of stainless steel (a) 300%"
11. This shows that sub-heading (1) of 73.33/40 is a residuary entry. Hence it was necessary to show that the article was not classifiable under sub-heading (2) which was a specific entry. For ascertaining this position, it was necessary to declare at the time of filing of the bill of entry, the composition of the article so that it could be determined whether it was made of stainless steel or not. The respondents, however, did not do so. They also did not submit the required documents even at the time of claiming reassessment. There is also no indication they did so before the Collector (Appeals).
12. Even now, they have not filed any documents to show the composition. Therefore, their contention that the article-was required to be charged duty at 100% under heading 73.33/40(1) remains unsubstantiated.
13. It is also obvious from the above that the error at the original stage was in indicating the sub-heading and not in indicating the rate of duty and the rate of duty had been correctly applied. Hence, the order of the Collector (Appeals) was required to be set aside. We therefore, accept the department’s appeal and confirm the order of the Assistant Collector.