T.K.Jayaraman, Member (T) - (1.) THIS appeal has been filed against the Order -in -Appeal No. 97/2008 dated 22.08.2008 passed by the Commissioner of Customs, (Appeals) Bangalore.
(2.) WE heard both sides. The appellants imported 3.65 lakhs of sets of assorted variety of Auto Lamps from China and they filed the Bills of Entry for clearance of the same. The assessment was completed. It was based on MRP, however, the appellants were aggrieved over the assessment. According to them, the impugned goods are not covered by the relevant notification for purposes of levy of additional duty of customs under Section 4A of the Central Excise Act. According to them, the automobile lamps which are imported are classifiable under heading No. 853921.29 and not under 8539.2190. It was stated that Notification No. -CE (NT) dated 01.03.2006 as amended is relevant. In terms of the relevant entry, the lamps for automobiles are specifically excluded from the entry in serial No. 91 of the said notification and hence, the assessment of levy under Section 3(1) is wrong. They had already paid an excess amount of Rs. 1,03,791/- for the goods under import. They approached the Commissioner (Appeals) to set aside the assessment and grant consequential refund. The Commissioner (Appeals) after going through the relevant notifications, came to the conclusion that the impugned products would be classified under serial No. 97 which has been inserted in the parent notification by notification No. -CE (NT) dated 29.05.2006, wherein serial No. 97 was inserted. The Commissioner (Appeals) had interpreted that after the issue of Notification No. -CE (NT) dated 29.05.2006, another Notification 24/2006 CE (NT) dated 14.11.2006 was issued, wherein against entry No. 91, it was stated "the following goods other than lamps for automobiles." From the above, it is apparent, according to the Commissioner (Appeals), that in order to avoid any confusion consequent on the insertion of serial No. 97 brining under the gambit of MRP, parts, components and assemblies of automobiles, a specific substitution was made in serial No. 91, that all types of lamps except automobile lamps are covered under serial number 91.
(3.) THE learned Advocate who appeared on behalf of the appellants made the following points : 1) It may be noted that the assessing authority has considered and applied Sl. No. 91 (ii) of the notification No. -CE (NT) dated 01.03.2006 as amended from time to time, wherein the abatement allowed is 40%. This entry specifically excludes the 'lamps for automobiles' vide amending notification No. dt. 14.11.2006. The learned Commissioner (Appeals) is apparently applying Sl. No. 97 of the said notification wherein the rate of abatement allowed is 33.5%. Ostensibly, Sl. No. 97 of the said notification covers only "parts, components and assemblies" of the automobiles. By no stretch of imagination, the lamps can be treated as either parts or components of any automobiles. Indisputably, the lamp alone cannot also be considered as an 'assembly' of any automobile. Thus, the learned lower appellate authority has erred in holding that the imported goods are covered under Sl. No. 97 of the said notification for the purposes of assessment of levy under the provisions of proviso to Section 3(2) of the Customs Tariff Act, 1975. 2) It may be pertinent to note that thought the order of the Commissioner (Appeals) would lead to an apparent error in assessment and quantification of duty, surprisingly the learned lower appellate authority simply upholds the whole assessment order passed by the Assistant Commissioner. This clearly indicates the lack of application of mind on the part of the learned lower appellate authority and thus the order is vitiated for this reason alone.;