Customs, Excise and Gold Tribunal - Mumbai
Coen Bharat Ltd. vs Commissioner Of Central Excise, ... on 2 November, 2001
Equivalent citations: 2002(145)ELT175(TRI-MUMBAI)
JUDGMENT
Gowri Shankar, Member (Technical)
1. The question for consideration in this appeal is the classification of hot area generator, manufactured by the appellant before us. In the order impugned in this appeal, the Commissioner has confirmed the classification of these goods under Heading 73.22 of the Tariff, dismissing the claim by the manufacturer for classification under Heading 8419.00
2. Before considering the contention of the parties, it would be desirable to reproduce the headings under consideration.
"73.22 Radiators for central heating, not electrically heated, and parts thereof, of iron and steel; air heaters and hot air distributors which can also distribute fresh or conditioned air, not electrically heated, incorporating a motor-driven fan or blower, and parts thereof, of iron and steel.
84.19 Machinery, plant or laboratory equipment, whether or not electrically heated, for the treatment of materials by a process involving a change of temperature such as heating, cooking, roasting, distilling, rectifying, sterilising, pasteurising, steaming, drying, evaporating, vaporising, condensing or cooling, other than machinery or plant of a kind used for domestic purposes; instantaneous or storage water heaters, non electric."
3. It is the contention of the counsel for the appellant that the terms of heading 73.22 do not cover the generator that it manufactured. This heading only covers air heaters or hot air distributors which can also distribute fresh or conditioned air. The generator manufactured by the appellant is incapable of distributing fresh air. He further relies upon the provisions of the Explanatory Notes to the Harmonised System of Nomenclature (which we will refer to as HSN) in support. The departmental representative contends that the Commissioner (Appeal) considered these Notes and has come to a reasoned conclusion in the classification.
4. It is necessary to note that the portion of heading 73.22 contained in the Central Excise Tariff differs from the portion in heading 73.22 in the HSN. The portion in the HSN heading reads "Air heaters and hot air distributors (including distributors which can also distribute fresh or conditioned air), not electrically heated, incorporating a motor driven fan or blower, and parts thereof of iron and steel." The heading in the tariff reads, "Air heaters and hot air distributor which can also distribute fresh or conditioned air, not electrically heated, incorporating a motor-driven or blower, and parts thereof, of iron and steel."
5. We are not able to accept the contention of the counsel for the appellant that the product must necessarily be able to distribute fresh or conditioned air before it can be classified under heading 73.22. What is classifiable under heading 73.22 is an air heater or hot air distributor which can also (emphasis ours) distribute fresh or conditioned air. According to us this phrase covers both those air heaters and air distributor which do not distribute fresh or conditioned air as well as those air heaters and air distributors which can also distribute fresh or conditioned air. Therefore the air heater or hot air heater which cannot distribute fresh or conditioned air will not be excluded from classification under this heading.
6. We will next go on to consider the Explanatory Notes. The notes to heading 73.22 while describing air heaters, say "These self-contained heaters, fixed or mobile, consist mainly of combustion chamber (with burner) or a grate, a heat exchanger (tube assembly, etc.) which transfers the heat given off by the combustion gases passing through it to the air travelling along its outer surface, and the motor-driven fan or blower. Generally these heaters are furnished with a exhaust flue for burnt gases." The contention is that the machine under consideration does not have a heat exchanger for the transfer of h eat and heat is transferred by contact of the combustion gases of the material to be heated. It also does not have an exhaust flue. The Explanatory Notes under heading 84.19 being by cautioning that the heading does not include inter alia air heaters and hot air distributors, not electrically heated of heading 73.22. It goes to say "With these exceptions, the heading covers machinery and plant designed to submit materials (solid, liquid or gaseous) to a heating or cooling process in order to cause a simple change of temperature, or to cause transformation of the material resulting principally from the temperature change....."
7. It is clear from the notes of heading 73.22 that eh air heaters of that heading would also be required for drying various materials. The notes below it say, "Air heaters and hot air distributors are included in this heading wherever they are intended to be used. The heading therefore covers air heaters for space heating and for drying various materials (fodder, grain, etc.), and apparatus for h eating vehicles of Section XVII."
8. We must also note that the Explanatory Notes do not make it mandatory or a precondition for classification of heaters under that heading the heaters must necessarily have a heat exchanger or an exhaust flue.
9. It is thus clear that such products would be classified either under heading 73.22 or 84.19. It is in this context we must consider the specific exclusion from heading 84.19 of goods which would otherwise be classifiable under heading 73.22. That exclusion in our view makes it clear that the air heater of the kind we are considering, which does not appear to be specially designed as a drying plant of the kind referred to in the notice under heading 84.19 would be classifiable under heading 73.22. The other contention, that the appellant's product contains flue gases, used ambient air to pull a combustion chamber did not appear to us to be material to the classification.
10. We therefore do not find material sufficient to justify interference with the classification determined by the Commissioner.
11. Appeal dismissed.