AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2009 (3) TMI 108
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....is the case of the appellant that the machinery imported by them is squarely covered under Serial No. 9, 25 of List 32 of Serial No. 257 of the said Notification. On the other hand, it is the case of the Department that the machinery imported by the appellant being button making machinery considering the description of the said machinery, the appellant is not entitled to claim any benefit under the said Notification. 4. While assailing the impugned orders of the lower authorities, the learned Advocate appearing for the appellants submitted that the catalogue in relation to the machinery and the invoices placed before the authorities clearly disclose the description of the machinery which would reveal that it is the button making machinery and the product manufactured thereby is designed for use in the leather industry and is therefore, squarely covered by the said Notification. He further submitted that in fact, the authorities have accordingly granted the said benefit to some of importers of similar product but has denied the same only to the appellant. He further submitted that merely because the product manufactured from the machinery in question could also be used in textile i....
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....articular function for which exemption is granted. 6. It is not in dispute that the machinery which is sought to be imported by the appellant is button making machinery. It is, however, the contention of the appellant that buttons which are to be manufactured are for the purpose of use in the leather industry and could be utilised for the purpose of leather jackets and leather coats and therefore, the machinery is squarely covered under the said Notification and that the fact that the machinery is automatic boring and milling machines is not in dispute and therefore, it would be squarely covered under serial No. 9 under the said notification. 7. Chapter 84.65 deals with "the machines, tools including machines for nailing, stapling, glueing or otherwise assembling for working wood, cork, bone, hard rubber, hard plastics or similar hard materials" and sub-heading No. 8465 95 00 speaks of "drilling or morticing machines". It would be advantageous to reproduce the relevant portion of the Notification in question- "S. No. Chapter or Heading No. or sub-heading No. Description of goods 257.. ........ ....... 84 or 90 ......... ......... Goods sp....
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....oubtedly, an exemption notification is to be strictly construed is well settled law. Once the assessee is able to show that the goods are covered under the exemption notification, the assessee could avail the benefit under such notification. However, in relation to goods which do not satisfy the description as well as the circumstances mentioned in the notification for availing benefit under the notification, no exemption from the payment of duty can be claimed under the said notification. 9. The authorities below while dealing with the claim of the appellants for exemption under the said notification have clearly observed that there is no dispute regarding the description of the machinery that it is button making machinery and indeed, the finding in that regard by the assessing authority has been reiterated by the lower appellate authority and we do not find any challenge to the said finding. It is, however, strenuously argued on behalf of the appellant that it is fully automatic boring and milling machine and therefore, the authorities have erred in denying the benefit under the said notification which are according to the appellant is available under item No. 9 of List 34 of se....
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....DE IN POLYESTER, WOOD, HORN, DESTINATED TO THE TEXTILE INDUSTRY DOUBLE VANGUARD MASS DMK-STANDARD version fully automatic milling and scoring machine complete with standard accessories. Total amount net CIF Nava Sheva (Sea) 04 CASES GROSS WGT. KG. 3754 NET WGT. KG. 3074 MARKS DK SHELL GURGAON 122050 24012/1-4 We certify and swear in present invoice to contain a true and faithful account". "AUTOMATIC MACHINE FOR THE PRODUCTION OF BUTTONS, BEADS, ACCESSORIES MADE IN POLYESTER/WOOD/HORN AND DESTINATED TO THE TEXTILE INDUSTRY DOUBLE VANGUARD MASS DMK-STANDARD Version: Fully automatic milling and scoring machine complete with standard accessories". 12. The description of the machinery in the invoices clearly reveals that the machinery is "destinated to the textile industry". There is no dispute that the machinery is button making machinery or that it is automatic milling and scoring machine. The machinery with such description would....
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....s regards the contention of the learned Advocate on behalf of the appellant that in any case, the goods imported by the appellant are squarely covered by Item No. 25 of List 34 of serial No. 257 of the said Notification is concerned, it is pertinent to note that no such contention was sought to be raised either before the lower appellate authority or before the original authority. Nevertheless, even assuming that such contention was sought to be raised before the lower authority, it is totally devoid of substance. Item 25 speaks of button hole machine (eyelet machine). Apart from the fact that the item on the face of it relates to button hole machine, the expression used in the bracket as "eyelet" clearly means a hole in cloth or in some other material. However, in order to understand the meaning of an expression under an item in the list of a notification, the same cannot be read independently and to the exclusion of the other items in the list and totally ignoring the serial No. 257. The description of a product claiming exemption under any of the items under list 34 the same should necessarily relate to the goods designed for use in a leather industry. Undisputedly, there is not....
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....urring, and other rounding was covered at item Nos. 36 and 37 under serial No.1 of the Table appended to Notification No.154/86-Cus dated 1-3-86 and therefore, could be subjected to duty at 35% ad valorem as applicable thereto. This is again on the point that merely because some additional functions are performed that itself would not be sufficient to deny the benefit under exemption notification. 19. In Ravalgaon Sugar Farm Ltd. supra, the question involved was whether the form, fill and seal machine with only gas flushing service and not having flushing vacuumising equipment was eligible for exemption under Notification No. 125/86-Cus dated 17-2-86 and the Tribunal following the ratio of the order in Consolidated Petrotech Industries v. CC reported in 1992 (57) E.L.T. 81 (Tri.), held that the goods were entitled for exemption under Serial No.17 of Notification No.125/86. 20. The decision in Consolidated Petrotech Industries case (supra) was in favour of the assessee. The word "and" used in serial No.17 of the Notification No.125/86 was considered as "or". 21. In Arifta Die Tool Engg. case (supra), it was held that functions of a jig boring machine include drilling and milling ....