Customs, Excise and Gold Tribunal - Mumbai
Eimco Elecon (India) Ltd. vs Commissioner Of Central Excise And ... on 5 November, 2003
Equivalent citations: 2004(167)ELT352(TRI-MUMBAI)
ORDER
Gowri Shankar, Member (Technical)
1. Appeal is taken up for disposal with consent of both sides after waiving deposit.
2. The appellant is a manufacturer of mining machinery such as loader and their parts. It had classified various parts as such air motor, transmission shafts, fasteners, gear box etc. which were components parts of such machinery under various heading. It is claimed that the classification was approved. Subsequently notice was issued demanding duty on the ground that the goods had been incorrectly classified. The notice proposed to classify these goods not under the various headings of the tariff that was earlier been claimed but in heading 84.13 as parts of loading and unloading machinery. The Asst. Commissioner whose order has been confirmed on appeal by the Commissioner (Appeals) confirmed the proposed in the notice. Hence this appeal.
3. In the appeal, the appellant had furnished reasons in support of the contention that the parts had been correctly classified. It had said that fastener such as screw were excluded from classification in heading 84.31 and that screw and fastener would have to be considered parts of general use as defined in note 2 to Section XV of the tariff and hence by application of note 1 (g) to Section XVI would not fall for classification in that section and therefore in chapter 84. It had further contended that by application of note 2A to Section XVI such goods as transmission shaft etc. would be classifiable not as parts of machine in which they were designed to be used but in their respective headings and heading 84.83.
4. These points have not at all been considered by the Commissioner (Appeals). He has been guided in the classification of the goods solely by the fact that having been given a special shape and size to enable them these articles became qualified as parts of a particular machine they must be considered to be so classified. This principle that a part which has been given special shape and size to enable it to be fitted as a component of particular machine is subject to significant exception as contained in the tariff. We have already cited a couple of these - parts of general use and goods classifiable in respective heading of 84 or 85 by application of note 2A to Section 16. The Commissioner (Appeals) was required to consider the various chapter and section notes before coming to his deciding to classification which he has not so particularly when these points have been raised before him. His order not a speaking order.
5. The appeal is accordingly allowed and the impugned order set aside. The matter is remanded to the Commissioner (Appeals) for deciding the appeal in accordance with law.