TaxTMI 
TaxTMI 
2009 (2) TMI 173
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....iled Bill of Entry dated 17-4-2008 for clearance of goods described as "1 set of Gas Suppression System'[(GSS in short). They sought classification of the said goods under heading 8531 10 90 and claimed the benefit of 5% concessional duty under EPCG Scheme vide Sl. No. 1 of Customs Notification No. 97/2004-Cus., dated 17-9-2004, as amended. The lower authority proceeded against the appellants on the ground that (a) GSS is not covered by EPCG authorization; (b) GSS is not classifiable under heading 85.31; (c) GSS is nothing but Hepta Fluoro Propane (HFC) Gas failing under Heading 29.03; (d) HFC falling under 29.03 is restricted for import and requires licence from DGFT; and (e) HFC Gas is not a Capital Good covered under the EFCG Scheme and ....
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....cepted the goods as Capital Goods and issued licence accordingly. In such circumstances, the Customs have no jurisdiction to sit in appeal over the said decision of the DGFT. This issue has been settled by the Apex Court in the case of Titan Medical Systems Pvt. Ltd. v. CC, New Delhi - 2003 (151) E.L.T. 254 (S.C.). The following case-laws were also relied on: (a) Autolite India Ltd. v. UOI -2003 (153) E.L.T. 46 (Raj.) (b) CC(EP) v. Jupiter Exports - 2007 (213) E.L.T. 641 (Bom.) (c) Bhilwara Spinners Ltd. v. CC(EP) -2003 (223) E.L.T. 172 (Tri.-LB) (ii) The decision of the Tribunal in the case of Rashtriya Ispat Nigam Ltd. v. CC, Visakhapatnam - 2006 (197) E.L.T, 276 (T) also is applicable. The Board, in its Circular No. 46/2004-C....
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....mported along with Capital Goods in the first instance. Therefore, the said, amendment will not advance the case of the Revenue. It can also not exclude consumables on the import in question. The expression 'consumable' has not been defined either in the Customs Act, 1962 or in the Notification No. 97/2004-Cus. As far as the appellant is concerned, the item is integral to the functioning of the fire suppressant itself and, therefore, is required to be considered as a part of the Gas Suppression System. (iv) Under the Customs Law, goods have to be assessed in the manner in which they are presented for assessment. In this case, it is undisputed that the entire GSS was presented for assessment under a single invoice a d single Bill of Entry....
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.... cases peg. (a) Scientific Engg. House Pvt. Ltd. v. CIT - 1986 (157) ITR 86 (Guj.) (b) Aruna Mills v. CIT - 1966 (59) ITR 507 (Guj.) (c) CIT v. Tarun Commercial Mills Ltd. - 1985 (151) ITR 75 (Guj.) (d) CIT v. Central Bank of India Ltd. - 1976 (103) ITR 196 (Bom.) (e) CIT v. Coromondel Fertilizers Ltd. - 1985 (156) ITR 283 (AP) (f) CC (General), New Delhi v. Gujarat Perstorp Electronics Ltd. - 2005 (186) E.L.T. 532 (S.C.) Applying the decision of the Supreme Court in Taj Mahal Hotels - 1972 (168) AIR (SC), the Tribunal, in the case of Enjay Hotels P. Ltd. v. CC, Sheva - 2000 (119) E.L.T. 108 (Tribunal) held that marble slabs imported by a 'Hotel' under an EPCG licence are 'Plant' and hence, covered by the Notification N....
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....tled for the benefit under the EPCG scheme. 6. We have gone through the records of the case carefully. It is seen that the appellants applied for EPCG licence for import of, among other things, a Gas Suppression System. The purpose of the Suppression System is to detect smoke/fire and extinguish with the help of the gas. As outlined by the appellants, the entire system consists of several components including the impugned items viz. HFC 227 EA gas. The application of the appellant for grant of EPCG licence was scrutinized by a Committee consisting of the representatives of the DGFT as well as CBEC. The said Committee, in its wisdom, had permitted the issue of EPCG licence for the entire system. The said gas, which is the impugned item, i....
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....the present system, for extinguishing the fire can definitely to be treated as Capital Goods. In any case the Gas Suppression System without the main gas used for extinguishing fire will be meaningless. As regards the deletion of the word 'consumables,' we agree with the contention of the learned Advocate that what is deleted is only with reference to the existing plant and machinery. Even if the Customs Authorities had serious doubts with regard to the entitlement of the impugned item for the benefit under the said Notification, then a reference ought to have been made by the Customs Authorities to the Board CBEC for taking up the matter with the licencing authorities. This has not been done. Moreover, we agree with the appellant that the ....