Custom, Excise & Service Tax Tribunal
Commissioner Of Central Excise, Mumbai ... vs Eastern Engg. Works on 23 July, 2008
IN THE CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT No. II Appeal No. E/2170/03 (Arising out Order-in-Appeal No. RJB/M-III/145/2003 dated 22.4.03 passed by the Commissioner of Central Excise (Appeals), Mumbai) For approval and signature: Honble Mr. M.V. Ravindran, Member (Judicial) Honble Mr.K.K.Agarwal, Member (Technical) ====================================================
1. Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the 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?
4. Whether Order is to be circulated to the Departmental authorities?
Commissioner of Central Excise, Mumbai III Appellant Vs. Eastern Engg. Works Respondent Appearance:
Shri N.A. Sayed, JDR for the appellant Ms. Anagha Gavade, Advocate for the respondent CORAM:
Honble Shri M.V. Ravindran, Member (Judicial) Honble Shri K.K.Agarwal, Member (Technical) Date of hearing : 23.7.2008 Date of decision : 23.7.2008 O R D E R No:..
Per: Shri M.V. Ravindran, Member (Judicial) This appeal is filed by the revenue against Order-in-Appeal No. RJB/M-III/145/2003 dated 22.4.03.
2. The relevant fact that arises for consideration is that the respondent herein are manufacturers of circular looms and classified the same under section 8446. They are also manufacturing and clearing the parts required specifically for looms classified the same under 8448.00 as parts or accessories of circular looms. Show cause notice was issued to them directing them to classify the parts under respective heading and not under heading 8448. Respondent contested the show cause notice and the adjudicating authority confirmed the classification of the said goods under 8448. On an appeal, the Commissioner (Appeals) remanded the matter back to the adjudicating authority to reconsider the issue in the light of the evidence produced before him. In the denovo proceedings, after considering the evidence and certificate of Professor & Head of Dept. of Textile Manufacturer, VJTI, as produced by the respondent, it was held that the parts which are cleared by the respondent as parts, would get classified under CSH 8448, on such conclusion, the proceedings initiated by the show cause notice were dropped. The revenue went in appeal to Commissioner (A), who also came to the same conclusion. Hence this appeal.
3. Ld. SDR submits that these are parts which can be identified separately and they are of general use and they may not get covered under 8448. He reads out the grounds of appeal as has been filed by the revenue.
4. Ld. Counsel draws our attention to the CSH 8448.00 as reproduced in Order in original. It is the submission that the evidence of Certificate (Technical opinion) from the department of Textile Manufacturer, VJTI remains undisputed.
5. We have considered the submission made by both sides and perused the records.
6. Ld. Commissioner (A) while dismissing the appeal filed by the revenue arrived at the following findings.
The respondent also submitted that the VJTI has given a certificate which clearly brings out these parts are used in this particular machine and can not be fitted to other machines. Therefore, these are not general parts. After carefully going through the submissions made in appeal and the submissions made by the respondent, when the parts in dispute were shown to me, I find that these parts are not for common uses of the machines and not available freely in the market for any such use. These are required specifically for certain machines only. The certificate i.e. a technical opinion obtained from a Professor and Head of Dept. of Textile Manufacturer, VJTI, also shows that these parts have been designed specifically and for the exclusive treatment of loom manufactured by the company. It is further opined by him (Head of Dept. of Textile Manufacturer, VJTI) that loom part in fact cannot be used in any other models of circular loom. This technical opinion itself is an evidence to arrive at the correct classification of the products. I, therefore, do not find if the Assistant Commissioner was wrong in holding that the goods fall under Chapter sub-heading 8448.00. The Tribunal, in the case of MIPCO Seamless Rings Ltd. vs. CCE, Bombay 1997 (95) ELT 688 (TR) held that if the goods are suitable for use solely or principally with a particular kind of machine, then the same ought to be classified with the machines of that kind. As against the above finding, the revenue has not produced any contrary evidence to show that the parts which are cleared by the respondent took classification under different chapter sub-heading. Be that as it may, we find that the CSH 8448.00 during the relevant period reads as under:-
8448.00 Auxillary machines for use with machines of heading no. 84.44, 84.85, 84.46 or 84.47 (for example, dobbins jacguards, automatic stop motions, shuttle changing mechanisms); parts and accessories suitable for use, solely or principally with the machines of this heading or of heading no. 84.44, 84.45, 84.46 or 84.47 (for example spindles and spindle flyers, card clothing, combs extruding nipples, shuttles heads and head frames, hosiery nipples).
7. It may be noticed that this heading is a very specific heading which includes parts and accessories for the machinery, i.e. loom which merited classification under 8446. This factual aspect is not disputed. It is a settled law that, for classification of a product, a chapter sub-heading that is specific should be preferred than the general sub-heading.
8. Accordingly, we are of the considered view that the impugned order is correct and does not suffer from any infirmity. The appeal filed by the revenue is rejected.
(Dictated in Court) K.K.Agarwal M.V. Ravindran Member (Technical) Member (Judicial) sr