Custom, Excise & Service Tax Tribunal
M/S Osaw Industrial Products Pvt. Ltd vs C.C.E., Delhi Iii on 11 August, 2011
CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL, West Block No.2, R.K.Puram, New Delhi COURT-I Date of hearing/decision:11.8.2011 Central Excise Appeal No.52 of 2006 Arising out of the order in appeal No.352-353/GRM/PCK/2005 dated 26.9.2005 passed by the Commissioner (Appeals), Central Excise, Delhi III, Gurgaon. For Approval and Signature: Honble Shri Justice R.M.S. Khandeparkar, President Honble Shri Rakesh Kumar, Technical Member 1 Whether Press Reporter may be allowed to see the Order for publication as per Rule 26 of the CESTAT (Procedure) Rules, 1982? 2 Whether it should be released under Rule 26 of CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? 3 Whether their Lordships wish to see the fair copy of the Order? Seen 4 Whether Order is to be circulated to the Departmental authorities? Yes M/s Osaw Industrial Products Pvt. Ltd. .. Appellants Vs. C.C.E., Delhi III Respondent
Appearance:
Shri B.L. Narasimhan, Advocate for the appellants Shri Sumit Kumar, Authorised Departmental Representative (DR) for the Revenue Coram: Honble Shri Justice R.M.S. Khandeparkar, President Honble Shri Rakesh Kumar, Technical Member Oral Order No._______________________ Per Shri Justice R.M.S. Khandeparkar:
Heard the Advocate for the appellants and the DR for the respondent. This appeal arises from the order dated 26.9.2005 passed by the Commissioner (Appeals), Gurgaon. By the impugned order, the appeal filed by the appellants against the order dated 23.9.2004 passed by the Deputy Commissioner has been set dismissed.
2. The appellants are manufacturers of moisture testing machine and the dispute between the parties relates to its classification. According to the appellants, the product is classifiable under chapter heading 8437.00 which is chargeable to nil rate of duty whereas it is the contention of the Department that the product is classifiable under Chapter heading 9031.00.
3. Undisputedly, the issue stands settled by the earlier decision of the Tribunal. In Oriental Science Apparatus Workshop vs. C.C.E., Panchkula reported in 2005 (180) ELT 97 it was held as under:-
7. It remains undisputed that the Moisture testing? machines in question, are used solely for the purpose of determining moisture contents in wheat, paddy, grains/Cereals, pulses, etc. These machines are not used for cleaning sorting or grading grain or dried leguminous vegetables. The grading and sorting of the grains/cereals is done later on and not through these machines. The arguments of the learned Counsel that these machines are used solely in the milling industry also cannot be accepted as there is ample evidence on record to prove that these machines are also used by FCI, MARKFED, HAFED who have even furnished certificates regarding the use of these machines for determining the moisture contents in the grains Similarly, various Government agencies like Karnataka Seeds Corporation, University of Agriculture Sciences, Bangalore have also furnished certificates that they are using these machines exclusively for determining the moisture contents in the seeds/grains. All these agencies do not fall within the definition of milling industry. These are rather non-milling agencies who are using these machines for ascertaining the moisture contents in the seeds/grains. Therefore, these machines do not fall within the ambit of Chapter Heading 8437.00 even if read with the HSN Explanatory Notes to this Chapter, reproduced above.
8. On the other hand, keeping in view the functions of these machines, which is to ascertain the moisture contents in the grains/seeds, it can be safely and legally concluded that these are checking/measuring instruments falling under Chapter Heading 9031.00 of the CETA. The argument of the Counsel that this is a general Chapter Heading and as such, the specific Heading 8437 of CETA has to prevail over it for classifying the machines in question, cannot be accepted as the machines do not at all fall within the four corners of Chapter Heading 8437, as discussed above. These machines are squarely covered by Chapter Heading 9031.00 and as such, deserves classification only under it.
4. In view of the said decision, the classification as propounded by the Department stands confirmed and the claim of the assessee stands rejected.
5. For the reasons recorded in the said decision, we do not find any justification to interfere in the impugned order and hence the appeal fails and is hereby dismissed.
(Justice R.M.S. Khandeparkar) President (Rakesh Kumar) Technical Member scd/