Commissioner Of Customs vs Larsen And Toubro Limited on 29 August, 2000

Customs, Excise and Gold Tribunal – Mumbai
Commissioner Of Customs vs Larsen And Toubro Limited on 29 August, 2000
Equivalent citations: 2000 (122) ELT 138 Tri Mumbai


ORDER

Gowri Shankar, Member (T)

1. The question for consideration in this appeal is the eligibility to notification 128/94 of goods described as “Stud Tensioning Device” imported by the respondent. The Assistant Commissioner had denied the benefit of the notification. On appeal from this order the Collector (Appeals) found that it would be available. Hence this appeal by the department.

2. It is common ground that the stud tensioning device is a machine which is used to ensure the required degree of tension on the studs which form part of the manhole cover of the pre-heater which is manufactured by the respondent. The notification exempts import of ‘materials’ used for manufacture of final products.

3. ‘Materials’ is defined in the explanation to notification as follows :

“(a) raw materials, components, intermediates, consumables, computer software and parts required for the manufacture of final goods;

(b) packing materials required for the packing of final goods to be supplied;”

4. It is the contention in the department’s appeal that these goods do not form part of the finished goods. They are not raw materials, components, intermediate consumables, computer software and parts required for manufacture of final products. They do not fall within the definition of term ‘material’.

5. The contention raised by the representative of the respondent is that these goods are required for the manufacture of manhole cover and in fact required to maintaining the stud in the required degree of tension by the buyer of the goods and therefore supplied along with the pre-heater. He relies in this regard upon a certificate of a buyer, M/s. Indian Farmers Fertilisers Cooperative Limited. The export obligation has been fulfilled and no duty has been charged from the customer. Therefore no duty can be demanded.

6. The view of by the Commissioner (Appeals) that since a licence has been issued for the import of this commodity by the licensing authority he had examined the essentiality of the device for the pre-heater is not acceptable. It is no part of the licensing authority’s function to determine the applicability of exemption notification or to carry out any function connected with the levy and collection of customs duty. That is solely the function of the customs authorities. The fact that the machine is required for functioning of the pre-heater is again irrelevant in deciding whether its import is allowed in terms of notificaion. We have to see whether the machine falls within the definition of the term ‘material’ specified in the notification. That some nuts and bolts might have been allowed for import, which the Commissioner cites no authority is again irrelevant consideration. His view that a liberal view should have been taken of the notification is contrary to law. It is settled law that in considering the exemption the notification should be construed strictly and any benefit of doubt should go to the department.

7. We are also not able to see relevance of the Tribunal in CCE v. SAE India Limited, 1993 (63) E.L.T. 478 relied upon by the Commissioner (Appeals). The question for consideration before the Tribunal was whether a particular machine was classifiable under heading 84.59 or 84.59 of the Customs Tariff Act and it is unconnected with the facts before us. Apart from the fact that these goods are required in the manufacture of goods, although they may be possibly required as a device. It was stated by Mr. V.N. Naik, Senior Purchase Officer of the respondent, to be a complete machine. His further submission that it can be used only for a particular purpose is irrelevant. Every machines are used only for specific purposes.

8. We are therefore of the view that the benefit of the notification should not have been accorded, allow the appeal, set aside the order of the Commissioner (Appeals) and restore the order of the Assistant Commissioner. The cross-objection filed is only supportive to the order impugned and does not call for order.

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