NATIONAL DAIRY DEVELOPMENT BOARD Vs. COMMISSIONER OF CUSTOMS

JUDGEMENT

(1.) The issue involved in this Appeal, filed by M/s. National Dairy Development Board, is whether refund of the Customs duty is admissible to them.

(2.) Shri Rakesh Tiku, learned Advocate, submitted that the Appellants had imported tailor made spares for the Aseptic Packaging Machine falling under Heading No. 98.06 of the Customs Tariff, that they claimed benefit of exemption Notification No. 69/87 -Cus dated 1.3.1987; that the Department reviewed the assessment and re -classified the impugned goods and assessed on merits; that as the consignment was incurring demurrage charges, they cleared the consignment on payment of duty on 6.1.1988; that subsequent to the clearance of the impugned goods, they filed an application for refund of customs duty which was rejected by the Assistant Commissioner of Customs, under Order -in -Original dated 23.8.95 on the ground that some of the goods appeared to be interchangeable with parts of motor vehicles; that the Commissioner (Appeals) also under the impugned Order has rejected their Appeal on the ground that goods were general purpose parts which had been cleared without establishing certain physical condition prescribed for the eligibility for the concession.

(3.) The learned Advocate, further, submitted that the imported goods were tailor made spares and essentially required for the Aseptic packaging machine which was supplied by Mrs. Tetrapak Pacific Pvt. Ltd. who were the only manufacturer of the said kind of machine and spares; that since these spares were specially manufactured to suit the compatibility of Aseptic Packaging Machine, the same could not be used elsewhere and as such were correctly classifiable under Heading 98.06 read with Notification No. 69/87 -Cus; that a Chartered Engineer's Certificate stating that the impugned goods were tailor made spares for the machine was also submitted to the Department; that the Department has not brought any material on record to negate the Certificate given by the Chartered Engineer. He also mentioned that the relevant product catalogue, drawing and write up of the individual parts were also furnished by them in support of their contention that the impugned parts had no general function whatsoever and could not be fitted or connected with any other general machine. He further, mentioned that the burden to prove that the impugned parts are inter -changeable is on the Department as the Appellants has discharged their onus inasmuch as these parts were imported by them from the manufacturer of Aseptic Packaging Machine; that further the Department is also not sure as the original Adjudicating Authority has given his finding that "some of them appear to be inter -changeable with parts of motor vehicles (like clutch pin etc.)".