TaxTMI 
TaxTMI 
2011 (3) TMI 1110
X X X X Extracts X X X X
X X X X Extracts X X X X
....f the notification No. 25/2005-Cus. Dt 01.03.2005, which outline the scope and coverage of the exemption, are as under: "hereby exempts the goods of the description specified in column (3) of the Table below and falling within the heading, sub-heading or tariff item of the First Schedule to the Customs Tariff Act, 1975 (51 of 1975) as are specified in the corresponding entry in column (2) of the said Table." As is well settled in the case law cited separately, the exemption conditions have to be strictly construed. Therefore, the following two conditions must be satisfied for any goods to become eligible to the exemption, viz. * the goods must answer to the description specified in col. (3), and * the goods must fall within the classification specified in col. (2). The use of the word "and"clearly means that both these conditions must be satisfied. (b) Background of the Notification No. 25/2005-Cus dt. 01.03.2005. In the 2005 Budget, by an amending notification No. 11/2005-Cus. Dt. 01.03.2005, inter alia about 32 different entries then falling at various serial numbers between sl.no. 272 to 385 of Notification No. 21/2002-Cus., which then carried non-nil effect....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e goods in question do not fall within either of these two headings, then the exemption cannot be allowed, even if every other condition is satisfied. (d) The question therefore is, whether the goods in question which are coaxial cables, fall within 8544.41 or 8544.49? The answer to this is a clear No, as is very clear from the tariff entries. As the 6-digit level, coaxial cables fall under 8544.20 which is different from 8544.41/8544.49. The two are mutually exclusive. Hence, the coaxial cables, even if they meet the voltage or end-use criterion vide column (3) of the notification entry, cannot be allowed the exemption. Doing so would amount to rendering otiose the phrase in the opening para of the notification which says ". and falling within the Chapter, heading or sub-heading of the First Schedule to the Customs Tariff Act, 1975 (51 of 1975) as are specified in the corresponding entry in column (2) of the said Table".." (e) The Ld. Commissioner (Appeals) is a creature of the Statute and is bound by the same. In the guise of intention-seeking, he cannot legislate or assume to himself the powers under Section 25 of the Customs Act which have been vested only in the Central ....
X X X X Extracts X X X X
X X X X Extracts X X X X
..... Max India Ltd. 2007 (211) ELT A134 (S.C.) 6. CCE, Bolpur Vs. Ratan Melting & Wire Industries 2008 (231) ELT 22 (S.C.) 5. We have considered the arguments from both sides. We find that in a similar case of ACE Microelectronics Pvt. Ltd. Vs. CC, Jaipur # 2010 (255) ELT 567 (Tri.-Del.), the orders denying exemption under the same notification were upheld by the Tribunal as the impugned cables in that case were tested and the same withstood 250V for 5 hrs. without any damage. The argument by the importers in that case that 300V indicated in the catalogue was a breakdown voltage was also found to be not correct as the department had obtained a report from the Electronics Test and Development Centre, Jaipur under the Directorate of Information Technology, Government of India, to the effect that there was no breakdown observed at 300 Volts. In this case, we find that no test has been undertaken in respect of the present consignment. The Commissioner (Appeals) has referred to test certificates No. 3262 dated 14.12.2006 and 1467 dated 24.05.2007 by the Regional Testing Centre of Ministry of Small Scale Industry vide internal page-5 of his order. He has gone by these test repor....
X X X X Extracts X X X X
X X X X Extracts X X X X
....sl.no. 28. In fact, in the entire notification, goods falling under heading 8544 are specified under two Sl. nos. only: Sl. no. 28 covers goods classified under 8544.41 and 8544.49, and sl.no.29 covers goods classified under 8544.50. Sl. no. 33 covers goods falling under any chapter irrespective of their classification provided they are used in the manufacture of goods falling under sl.nos. 1 to 32. 7. In fact, subheadings 8544.40, 8544.50 and 8544.60 cover "other electric conductor". In other words, these subheadings would cover such conductors which are other than those described previously under the preceding subheadings such as 8544.10, 8544.20 and 8544.30, i.e., conductors other than winding wire, co-axial cable, and ignition wiring sets would be covered under the latter subheadings the coverage being limited to "other electric conductors". Since the impugned notification specifies subheadings 8544.41 and 8544.49 under Sl. No. 28 and 8544.51 under Sl. No. 29, co-axial cables not being covered by these subheadings stand excluded from the coverage of the said notification. The structure of the notification including specified items classified under specified sub-headings of t....