Custom, Excise & Service Tax Tribunal
Commissioner, Customs & Central Excise vs M/S.Simplex Engineering & Foundry ... on 18 June, 2014
IN THE CUSPTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, NEW DELHI, PRINCIPAL BENCH NEW DELHI
Date of Hearing: 18.06.2014
Date of Decision: 04/07/2014
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Whether Press Reporter may be allowed to see the Order for publication as per Rule 26 of the CESTAT (Procedure) Rules, 1982?
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Whether it should be released under Rule 26 of CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
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Whether their Lordships wish to see the fair copy of the Order?
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Whether Order is to be circulated to the Departmental authorities?
Excise Appeal No. 1299/2005-EX (DB)
[Arising out of Order-in-Appeal No.09/RPR-II/2005 dated 28.01.2005 passed by the Commissioner (Appeals-II), Customs & Central Excise, Raipur (CG)]
Commissioner, Customs & Central Excise Appellants
Vs.
M/s.Simplex Engineering & Foundry Works Respondent
Appearance:
Rep. by Shri Amresh Jain, DR for the appellant.
Rep. by Shri L.P. Asthana, Advocate for the respondent.
Coram: Honble Mr. Justice G. Raghuram, President Honble Mr. Rakesh Kumar, Member (Technical) Final Order No. 52696/ 2014 Per Rakesh Kumar:
The facts giving rise to this appeal filed by the Revenue are, in brief, as under:-
1.1. The respondent are engaged in the manufacture and fabrication of engineering goods falling under Chapter 73 and 84 etc. of the Central Excise Tariff Act, 1985 and accordingly, they were manufacturing metal rolling mills and its various parts. During the period of dispute, Heading No.84.55 covering metal rolling mills was as under:-
84.55 Metal Rolling Mills and Rolls therefore 8455.10- All goods other than parts 8455.90- Parts 1.2. The period of dispute in this case is from April, 1996 to October, 1996 and during that period, among other parts of metal rolling mills the following parts were also being manufactured (1) Run out Roller Table (2) Interconnecting Roller Table between Coil 3 & 4 (3) Coiler Track Way (4) Coil Conveyor to connect Coiler 4 & 5 (5) Roller Bridge including Side guide on Top of Coiler 1 & 2 (6) Roller Bridge on Top of Coiler 3 (7) Simple parts (8) Maintenance Platform, Spiral ladders for coiler (9) Maintenance Platform, Stairs, Ladders for Coiler 2 & 3 (10) Dummy stand for prefabricator of mill stand piping (11) AGC maintenance platform (12) Surge Tank and (13) C-Hook. 1.3. The respondent initially in their classification declaration dated 12.12.95 classified the above items under Sub-Heading No.8455.90 where the rate of duty is 15% Adv., but subsequently, on 12.04.96 they filed revised classification declaration w.e.f. 12.12.95 classifying all the above items under sub-heading no.8455.10 where the rate of duty is 10% Adv. on the ground that these parts are complete handling machinery for the hot strip rolling mills and as such, are not the parts of the rolling mills. The matter was adjudicated by the jurisdictional Asstt. Commissioner, who classified only three parts simple parts, Surge tank and C-hook under sub-heading no.8455.90 and classified the remaining parts under sub-heading no.8428.00 during the period upto 27.09.96 and under sub-heading no.8428.90 during the period w.e.f. 28.09.96, where the rate of duty is 10% Adv. He accordingly dropped the duty demand of Rs. 60,49,079/-. This order of the Asstt. Commissioner classifying the Run out Roller Table, Interconnecting Roller Table between Coil 3 & 4, Coiler Track Way, Coil Conveyor to connect Coiler 4 & 5, Roller Bridge including Side guide on Top of Coiler 1 & 2, Roller Bridge on Top of Coiler 3, Maintenance Platform, Spiral ladders for coiler, Maintenance Platform, Stairs, Ladders for coiler 2 & 3, Dummy stand for prefabricator of mill stand piping, and AGC maintenance platform under Heading no.84.28 was reviewed by the Commissioner and accordingly, a review appeal was filed before the Commissioner (Appeals). The Commissioner (Appeals) vide order-in-appeal dated 02.05.2003 set aside the Asstt. Commissioners order in respect of the classification of the above parts and held that all these parts are classifiable under sub-heading no.8455.90 as parts of the rolling mills. On this basis, the duty demand of Rs.60,49,079/-, which had been dropped by the Asstt. Commissioner, was confirmed.
1.4. The Respondent filed an appeal before the Tribunal against order-in-appeal dated 2.5.2003 passed by the Commissioner (Appeals). This appeal was disposed of by the Tribunal vide order-in-appeal dated 10.08.2004. The Tribunal by this order observing that
(a) the plea of the assessee that the items whose classification is under dispute have well defined and independent operations and contribute ultimately to completion of rolling process and for this reason, the same would come under the purview of Auxiliary Equipment and not parts of the rolling mills, has not been considered by the Commissioner (Appeals), though this plea had been made;
(b) Explanatory Notes of HSN Heading 8455 also clearly mention that in general, the operation of the rolling mills require a large amount of auxiliary equipment,
(c) if, the goods, in question, are auxiliary equipment, the same have to be classified in their appropriate heading, as the assessee are not clearing rolling mills in unassembled condition; and
(d) If on the other hand, they are parts of the rolling mills, their classification has to be decided as per the principles contained in Note-2 to Section XVI of the Tariff ;
remanded the matter to the Commissioner (Appeals) for denovo decision after affording reasonable opportunity of hearing to the assessee.
1.5. In course of de novo proceedings, the Commissioner (Appeals) vide order-in-appeal dated 28.01.2005, observing that the items mentioned above are auxiliary equipments and they are not parts of the rolling mills, and hence their classification under sub-heading no.8455.90 is ruled out, held that the same would merit classification under heading 84.28 as all these items are nothing but the equipments for lifting, loading and unloading of material. Accordingly, the Commissioner (Appeals) vide his de novo order-in-appeal dated 28.01.2005 restored the order passed by the Asstt. Commissioner. Against this order of the Commissioner (Appeals), this appeal has been filed.
2. Heard both the sides.
3. Shri Amresh Jain, ld. Departmental Representative, assailed the impugned order by reiterating the grounds of appeal in the Revenues appeal and cited the judgement of the Tribunal in the case of Beekay Engineering & Casting Ltd. Vs. Commissioner - 2002 (146) ELT 628 (Tribunal) wherein the Tribunal relying upon its earlier judgement in the case of Bhilai Engineering Corpn. Ltd. Vs. CCE, Raipur reported in 2000 (120) ELT 91 (Tribunal) had upheld the classification of the charging and discharging machines for hot strips rolling machines under sub-heading no.8455.90 as parts of the metal rolling machines. He also stated that civil appeal no.7902/2002 filed by M/s Beekay Engineering and Castings Ltd. against this judgement of the Tribunal has been dismissed by the Apex Court judgement dated 13.3.2003 reported in 2003 (157) ELT A-84 (SC) and a review application filed by M/s. Beekay Engineering and Castings Ltd. against this order was also dismissed vide judgement dated 15.10.2003 reported in 2004 (166) ELT A-151 (SC). He pleaded that in view of this, the judgement of the Apex Court in the case of Beekay Engineering & Castings Ltd. (supra) becomes a binding precedent and accordingly, the items, in question, viz. Run Out Roller Table, Interconnecting Roller Table between Coil 3 & 4 ,Coiler Track Way, Coil Conveyor to connect Coiler 4 & 5, Roller Bridge including Side guide on Top of Coiler 1 & 2,Roller Bridge on Top of Coiler 3, Maintenance Platform, Spiral ladders for coiler, Maintenance Platform, Stairs, Ladders for coiler 2 & 3, Dummy stand for prefabricator of mill stand piping, and AGC maintenance platform would be correctly classifiable under sub-heading no.8455.90 of the Tariff and not under Heading no.8455.10 or 84.28. He, therefore, pleaded that the impugned order is not correct and the same is contrary to the law laid down by the Apex Court with regard to the classification of the goods in question.
4. Shri L.P. Asthana, Advocate, ld. Counsel for the respondent, pleaded that the order-in-appeal dated 28.01.2005 classifying the goods, in question, under heading 84.28 has been passed in course of de novo proceedings in terms of the Tribunals order NO.A/545/04 dated 10.08.2004, wherein the Tribunal observing that if the items, in question, are auxiliary equipments of the rolling mills, they have to be classified in their appropriate heading and if they are parts of the rolling mills, their classification has to be decided as per the principles contained in Note-2 to Section XVI of the Tariff, had remanded the matter to the Commissioner (Appeals), that this judgement of the Tribunal had not been challenged by the Department, that since the items, in question, are not parts suitable for use solely or principally with rolling machines, the same have to be classified on merits and that since the items in question are nothing but equipment for lifting, loading or unloading of material, the same have been correctly classified by the Commissioner (Appeals) under Heading No.84.28. He, therefore, pleaded that there is no infirmity in the impugned order passed by the Commissioner (Appeals). He emphasized that order dated 28.01.2005 passed by the Commissioner (Appeals) is strictly in accordance with the directions of the Tribunal remand order dated 10.08.2004 which had not been challenged by the Department.
5. We have considered the submissions from both the sides and perused the records. The respondent manufacture rolling mills and their parts. During the period of dispute while heading no.84.55 covered metal rolling mills and rolls thereof, Sub-heading no.8455.10 covered all goods other than parts and sub-heading no.8455.90 covered parts. The dispute in this case is about classification of the following parts:-
(1) Run Out Roller Table (2) Interconnecting Roller Table between Coil 3 & 4 (3) Coiler Track Way (4) Coil Conveyor to connect Coiler 4 & 5 (5) Roller Bridge including Side guide on Top of Coiler 1 & 2 (6) Roller Bridge on Top of Coiler 3 (7) Maintenance Platform, Spiral ladders for coiler (8) Maintenance Platform, Stairs, Ladders for coiler 2 & 3 (9) Dummy stand for prefabricator of mill stand piping (10) AGC maintenance platform 5.1. There is no dispute that all these items are not the rollers through which the metal passes but are the equipments for lifting, handling, loading and unloading of the materials which are in the nature of auxiliary equipment, essential for operation of rolling mills. The point of dispute is as to whether these items, are to be classified as part of the rolling mills under Heading No.8455.90 or the same are to be classified under Heading No.84.28. We find that similar question had been considered by the Tribunal in the case of Beekay Engineering & Castings Ltd. Vs. Commissioner reported in 2004 (166 ) ELT A-151 (SC) and the Tribunal in this order, relying upon its earlier judgement in the case of Bhilai Engineering Corpn. Ltd. vs. CCE, Raipur reported in 2000 (120) ELT 91 (Tribunal) has held that charging and discharging machines for hot strips rolling mills which are also in the nature of auxiliary equipment essential for operation of rolling mills, would be classifiable as part of the rolling mills under sub-heading no.8455.90 and not only a civil appeal filed by the assessee against this judgement was dismissed by the Apex Court vide judgement reported in 2003 (157) ELT A-84 (SC), but the review petition against the dismissal of civil appeal was also dismissed vide judgement reported in 2004 (166) ELT A-151(SC). In view of this, keeping in view the principles laid down by the Apex Court in the case of Kunhayammed Vs. State of Kerala reported in 2001 (129) ELT 11 (SC), the Apex Courts order in case of Beekay Engineering & Castings Ltd (supra) affirming the Tribunals judgement becomes a binding precedent. Therefore, we hold that the items mentioned above would be correctly classifiable under sub-heading no. 8455.90 as parts of rolling mills and not under heading no.8428.00/8428.90 as held by the Commissioner (Appeals). The impugned order of the Commissioner (Appeals) is, therefore, not correct as the same is contrary to the law laid down by the Apex Court on this issue. The impugned order, therefore, is set aside and the classification of the above items is ordered under sub-heading no.8455.90. The duty demand of Rs.60,49,079/- set aside by the Commissioner (Appeals) is confirmed. The Revenues appeal is allowed.
[order pronounced on 04.07.2014] (Justice G. Raghuram) President ( Rakesh Kumar ) Member (Technical) Ckp.