ORDER
Gowri Shankar, Member (T)
1. Appeal taken up for disposal with consent, after waiving deposit.
2. The appellant imported in August, 1990 a consignment of goods
described as gold plated plastic moulded round bowls, and filed a bill of
entry for warehousing them. The goods were classified in hearing 85.09 of
the Customs tariff. This heading covers electro-mechanical domestic
appliances, with self-contained electric motor, and parts thereof. The
appellant, after filing ex-bond bill of entry, cleared the goods fro the
bonded warehouse on 19.11.1992 after paying customs duty and additional
duty at the rate applicable to heading 8509.90. Notice was consequently
issued to the appellant alleging that the goods were correctly classifiable in
heading 9405.92 as lighting fittings, and demanding differential additional
duty of customs of Rs. 1,00,983/-. The basic duty of customs leviable on
goods of heading 85.09 and 94.05 is the same. The Assistant
Commissioner has confirmed the demand. After a round of proceedings
the mater was remanded to the Assistant Commissioner, he again
confirmed the demand. The assessee appealed the classification as
determined by the department and raising an alternative plea that even on
the classification decided by the department, the benefit of the exemption
contained in entry 10 of the table to notification 10/90 would be available.
The Commissioner (Appeals) confirmed the classification determined by
the Assistant Commissioner and declined to extend the benefit of the
exemption contained in the notification by observing that the relevant entry
in question was not in existence in August, 1990, when the appellant filed
the bill of entry. Hence this appeal.
3. Counsel for the appellant accepts before us that the goods have been
correctly classified in heading 94.05. He however contends that, by
applying the provisions of Section 15(1)C of the Act, the relevant entry of
the notification would be available because the goods were removed from
the bonded warehouse on 19.11.1992 by which time it was part of the
notification. He contends that in that event the short levy could only be
Rs. 11,774/- which he does not dispute.
4. We are not able to accept the contention of the departmental
representative that the benefit of the exemption is being claimed before us
for the first time. We have already recorded that the Commissioner
(Appeals) has declined to grant the claim for exemption. This reasoning is
clearly wrong. The ex-bond bill of entry shows the date of payment of duty
as 19th November, 1992 and the goods therefore had been removed from
the warehouse at this stage. It is the rate of duty prevailing on the date of
removal of the goods from the bonded warehouse, that would apply. The
Commissioner (Appeals) has obviously incorrectly failed to take note of the
ex-bond clearances. It is clear – although the Commissioner (Appeals)’s
order is silent – on this, the exemption contained in entry 19 which is for
goods falling in heading 94.05 except for items specified in entry 7 to 9 of
the notification – would be available to these goods. They are made of
plastic and are clearly not in those goods specified in any of the entries at 7 to 9.
5. The appeal is accordingly allowed and the impugned order set aside.