Customs, Excise and Gold Tribunal - Delhi
Grindwell Norton Ltd. vs Collector Of Customs on 29 December, 1987
Equivalent citations: 1988(15)ECR44(TRI.-DELHI), 1988(33)ELT768(TRI-DEL)
ORDER
G. Sankaran, Senior Vice-President
1. M/s. Grindewell Norton Ltd. (hereinafter referred to as the appellants) imported on or about 25-7-1979 at Madras three parcels of sieves of different meshes. They were assessed to Customs duty under Heading No. 84.18(1) of the First Schedule to the Customs Tariff Act, 1975 (the said Schedule is hereinafter referred to as 'the Schedule') at 40% ad valorem. Later on, the Custom House issued a notice of demand to the appellants for a sum of Rs. 7,854.62 on the footing that the goods were correctly assessable under Heading No. 90.01/06(1) [apparently a mistake for 96.01/06(1)] of the Schedule at 100% ad valorem plus 20% auxiliary duty. The appellants resisted the demand on the ground that the sieves were spare parts for the Ro Tap Testing Sieve Shaker imported by them earlier and that hence the original assessment was correct. The Assistant Collector rejected this contention as, in his view, the sieve shaker as well as the sieves were hand-operated. Accordingly, by an order dated 19-7-1980, he confirmed the demand. The appeal against this order was dismissed by the Collector (Appeals) by order dated 29-4-1983 which is impugned in the present proceedings.
2. We have heard Shri K.C. Malhotra, Manager Commercial of the appellant company and Shri G.V. Naik, Jt. C.D.R. and have read the record.
3. It is seen that the goods were indented for as spares for Ro Tap Testing Sieve Shaker, the more particularised description being "Tyler Standard Screen Scale testing sieves, 8" dia. Brass frame and stainless steel cloth - half heights" of different meshes. The supplier's invoice bears out this description with the amplification that the goods are "spares for laboratory equipment". The manufacturer's catalogue describes the Ro Tap Testing Sieve Shaker thus :-
"The Ro - Tap Testing Sieve Shaker was the first mechanical sieve shaker introduced to accurately reproduce the circular and tapping motion given testing sieves in hand-sieving; but with a uniform, mechanical action assuring dependable comparable tests. Since then the Ro Tap has become the unquestioned standard of comparison in all laboratories the world over.
The Ro Tap is built for handling 8" diameter testing sieves of different openings. With the regular height sieves, one sample can be tested on a series of six sieves of different openings, while with half-height sieves, one sample can be analyzed on a series of thirteen sieves of different openings and all with one operation of the machine.
xx xx xx xx The Ro - Tap is operated by a vertically mounted totally enclosed 1/4 hp motor. The standard Ro Tap is furnished for operation from 110 or (220) volts. Single phase current with 1750 rpm. units for 60 cycle current and 1450 from units for 25 or 50 cycle. The Ro Tap is actuated through its builtin timer."
The Portable Sieve Shaker is designed for easy transportation from one place to another for making field tests, the sieves being actuated by a specially designed mechanism to provide the correct shaking action. The Hand - Operated Sieve Shaker works by simply turning the crank at a steady speed.
4. We are inclined to agree with the appellant's contention that the sieves are not hand-operated. They are fitted onto the Sieve Shaker which is either operated electrically or, in the case of the hand operated Sieve Shaker by hand turning of the crank. But, that would not be operating the sieves by hand. The sieves are clearly designed to be mounted on the machine. And the machine, depending on what model it is, is operated either electrically or mechanically. The shaking of the sieves is evidently by mechanical action induced by either electrical energy or mechanical energy generated by manual power.
5. Chapter 96 of the Schedule is titled "Brooms, Brushes, Powder Puffs and Sieves". (We are conscious of the position that the titles of Chapters have no legal force but are for ease of reference only). Heading 96.01/06 reads thus :-
"96.01/06 : Brooms and brushes (including brushes of a kind used as parts of machines); prepared knots and tufts for broom or brush making; power-puffs and pads for applying cosmetics or toilet preparations, of any material; hand sieves and riddles, of any material:
(1) Not elsewhere specified - 100%
(2) Brushes of a kind used as parts
of machines - 40%".
From the setting and context in which the words "hand sieves" appear, it seems to us that what is sought to be covered by the lentry are only hand sieves, truly so-called, such as are found in houses for sieving flour etc. That is sieves which are designed to be manipulated solely by hand. Not sieves which are to be fitted to machines or equipment operated electrically or even by manual cranking. That this would be a proper view is supported by the fact that the entry "brushes" has been given an expanded coverage by including brushes of a kind used as parts of machinery. Such a qualifying clause is not found in the case of sieves. On the other hand, as the entry shows, what is covered are hand-sieves. Further support for this is found in the explanatory notes in the C.C.C.N. (Customs Co-operation Council Nomenclature - on which is patterened the Indian Customs Tariff Schedule), under Chapter 96 which says :-
"It follows from the text of the heading that it excludes : (a) Sieves and riddles desinged to be mounted on machines or appliances, such articles being classified as parts of machinery etc., generally in the same heading as the machine for which they are solely or principally designed."
In our opinion, the Collector (Appeals) has misread the manufacturer's catalogue which clearly shows that the Ro Tap Testing Sieve Shaker is built for handling 8" diameter testing sieves of different openings. The Shaker is designed to take sieves of regular or half heights. There is no room for doubt as to where the sieves are to be used. They are to be fitted to the Sieve Shaker. They are not meant for independent manipulation by hand. The Collector (Appeals) has referred to a note in the C.C.C.N. according to which sieves used in laboratories including those which can be connected together to form a sieve are covered by Chapter 96. We do not think this can be read so as to cover the subject sieves. In any event, they have to be first hand - sieves before the application of this note can be considered. The Collector (Appeals) has fallen into error in deciding the issue on a negative reasoning : "there is no evidence in the catalogue to prove that these cannot be used independent of the Sieve Shaking equipment" and "it is not proved that these cannot be used for sieving operations by hand". The appellants had, by production of the manufactuer's catalogue, shown that the subject sieves were designed to be fitted to the Sieve Shaker. It was for the department to show that the sieves were for manual manipulation. This has not been done.
6. The learned Jt. C.D.R. submits that there is no evidence to show that the subject sieves are exclusively designed for the machine and that they may be accessories but not parts therefor. We reject this contention for the reasons set out earlier.
7. In the result, we set aside the classification of the sieves in question under Heading 96.01/06(1) of the Schedule. The goods were originally classified under Heading 84.18(1) as parts of filtering machinery. The Department has not advanced any arguments against this classification in the event of Heading No. 96.01/06(1) being ruled out. We, therefore, restore the original classification under Heading 84.18(1).
8. The appeal is allowed.