At, Customs Excise Service Tax Appellate Tribunal Principal Bench New Delhi
By, THE HONORABLE JUSTICE: DR. SATISH CHANDRA
By, (PRESIDENT) AND THE HONORABLE JUSTICE: V. PADMANABHAN
For Petitioner: Govind Dixit, DR
1. The present appeal is against the Order-in-Appeal No. 61/2017, dated 27-1-2017. The respondent-importer filed Bill of Entry No. 7663757, dated 11-12-2014 for import of goods declared as Incense stick 8' MM 9" MM "Incense stick (unperfumed)" and classified the same under Chapter Heading 3307 41 00 claiming benefit of
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Sl. No. 394 (1) of Notification No. 46/2011, dated 1-6-2011 having duty as 6% (BCD) + 0% (CYD) + 4% (ACD) + 2% (Edu. Cess) + 1% (H. Edu. Cess) overall duty leviable @ 10.43% adv.
2. However, the Department was of the view that such goods cannot be classified under 3307 41 00 as agarbatis since the imported goods were unperfumed and cannot be considered as odoriferous substances. Hence, a view was taken that the goods will not be entitled to benefit of CVD exemption under notification No. 46/2011, dated 1-6-2011 (Sl. No. 394). It was further observed that the goods were also undervalued. Accordingly, the value was reassessed on the basis of NIDB data and customs duty was demanded by denying the CVD exemption. Aggrieved by the assessment order, the importer carried the matter to Commissioner (A) who decided the issue in their favour, by setting aside the charge of undervaluation as well as accepting the declared classification. Aggrieved by the order, Revenue has filed the present appeal.
3. With the above background, we have heard Shri Govind Dixit, DR for the appellant and none appeared for the respondent in spite of sending notice.
4. Explaining the grounds of appeal, Ld. DR submitted that the imported goods cannot be considered as agarbatties since they are unperfumed. The case law N. Ranga Rao & Sons v. CC, Chennai - 2007 (218) E.L.T. 146 (Tri-Chennai) relied by the Commissioner (A), is not applicable to the present case. In that case the imported goods were tested and found to give out pleasant smell. In the present case, samples were not tested and the goods are declared as not perfumed. Accordingly, he prayed that impugned order be set aside and the original order be reinstated.
5. The Customs Tariff Heading 3307 41 00 covers agarbatti and other odoriferous preparation which are operated by burning. The imported goods, though described as incense stick, are unperfumed and hence, cannot be covered by the above customs tariff heading since they cannot be considered as odoriferous preparation. That rules out their classification under Heading 3307 41 00.
6. The case law N. Ranga Rao & Sons v. CC, Chennai (supra) relied upon by the Commissioner (A) is distinguishable from the present one. In the present case, the goods are clearly unperfumed and hence cannot be considered as agar-bati. Accordingly the benefit of CVD exemption under Notification No. 46/2011, dated 1-6-2011 will not be available to the imported goods.
7. Regarding the charge of undervaluation, the Commissioner (A) has recorded that the Department has not given any evidence of contemporaneous import for reassessing the value. Accordingly, we find no reason to interfere with such findings. In view of the above, appeal filed by the Revenue is partly allowed in respect of classification but rejected in respect of valuation. Impugned order is modified