Customs, Excise and Gold Tribunal - Delhi
Daewoo Motors India Ltd. vs Cc on 16 March, 1998
Equivalent citations: 1998(77)ECR131(TRI.-DELHI)
ORDER Lajja Ram, Member (T)
1. M/s. Daewoo Motors India Ltd. have filed an appeal being aggrieved with the order-in-appeal dated 24.11.1997 passed by the Commissioner of Customs (Appeals), New Delhi which was received in the registry on 27.2.1998. Along with the appeal, they have also filed a stay application for waiving the pre-deposit of duty amounting to Rs. 39,63,592/-.
2. The matter relates to the classification of the product which had been referred to as Engine Control Module (ECM). The Commissioner of Customs (Appeals) had confirmed the classification of ECM under heading No. 85.43 of the Customs Tariff. The appellants have pleaded that the goods were classifiable under heading No. 84.09.
3. We have heard Shri V. Lakshmi Kumaran, Advocate for the appellants and Shri R.S. Sangia, JDR for the respondent. Shri Lakshmi Kumaran, Advocate referred to the functioning of the ECM as given at page 3 of the appeal memo. It was his submission that the ECM in the car manufactured by the appellants replaces the carburettor and controls the various inputs in the engine. It is placed near the controls, brakes etc. He pleaded that in no case, the ECM was classifiable under heading No. 85.43 and if the classification as pleaded by the appellants under heading 84.09 is not agreed then an alternative classification would be under heading No. 90.23. In support of this alternative classification, he referred to the Explanatory Note under HSN and the clarification sought by them subsequently with regard to the correct classification in different parts of the world. He pleaded for decision in the matter on merits. He also referred to the Tribunal decision in the case of Fine Automative and Industrial Raditors (P) Ltd. v. Collector of Customs and Central Excise, Tricky (Final Order No. 1197 and 1198/97 dated 3.5.1997 wherein the scope of Heading No. 84.09 and Heading No. 84.79 had been discussed. Heading No. 84.79 was for non-electrical parts having individual functions while 85.43 was for electrical controls.
4. In reply Shri R.S. Sangia, JDR referred to the order-in-appeal and submitted that Customs Tariff Heading No. 84.09 covers parts of internal combustion piston engines such as pistons, cylinders, cylinder heads etc. and that the ECM cannot be considered to fall in that category. It was a separate and distinct product and was not a part of engine. He referred to the discussion by the Commissioner (Appeals) at page 2 of his order and submitted that the goods were correctly classifiable under heading 85.43 being electrical in nature. As regards the alternative classification, he submitted that this was not taken up before the lower authorities and that there was no occasion to discuss the classification under this heading.
5. We have carefully considered the matter. We find that as explained by the appellants, the ECM appears to be in replacement of carburettor and designed to process the various signals for controlling the fuel consumption and to control the RPM of engine under different conditions. It did not appear to be a part of engine. In the manufacturing certification at page 41 of the paperbook, it has been submitted that ECM was designed to control the fuel injection system giving greater fuel economy, performance etc. Before us the Id. Advocate had pleaded that as per HSN Explanatory Note under heading No. 90.23, the goods imported could be considered as classifiable under that heading No. 90.23 if their plea for classification under heading No. 84.09 is not acceptable. He produced some correspondence in this regard which we find that this was not before the Assistant Commissioner of Customs or the Commissioner of Customs (Appeals) when the matter was decided between Heading No. 84.09 and Heading No. 85.43.
6. The appellants have pleaded that they are regularly importing the goods in question and that shortly they are going for indigenous supply and that the correct classification was a matter of urgency for the manufacturer.
7. With regard to the classification of the goods, we consider that in view of the alternative plea taken by the appellants before us, this matter has to be re-examined afresh by the jurisdictional Commissioner (Appeals), Customs.
8. In view of the above, we waive the pre-deposit and with the consent of both the parties, the appeal is taken up for regular hearing. After taking note of the submissions made by both the sides, we remand the matter for de novo consideration in the light of the submissions made by the appellants before us. At this stage the learned Advocate prays for remand to the jurisdictional Assistant Commissioner of Customs as the alternative classification was not even before the jurisdictional Assistant Commissioner of Customs. Shri R.S. Sangia, JDR had no objection. Accordingly, the matter is remanded to the jurisdictional Assistant Commissioner of Customs who should decide the matter after giving an opportunity to the appellants to present their case and then pass an appealable speaking order as per law.
The appeal is thus allowed by way of remand.
(Dictated in the open court).