Customs, Excise and Gold Tribunal - Mumbai
Commissioner Of Cus. (Import) vs Larsen And Toubro Ltd. on 1 November, 1999
Equivalent citations: 2000(115)ELT199(TRI-MUMBAI)
ORDER J.H. Joglekar, Member (T)
1. The facts leading to the present dispute are as below : -
2. M/s. Larsen & Toubro Ltd. imported goods described, as "finned tubes". The goods were assessed under sub-heading 7304.49. Subsequent to their clearance the importers filed a refund claim on the ground that goods merited assessment under sub-heading 8419.90 read with Notification 172/89-Cus. as parts of heat exchangers. The refund claim was dismissed by the Additional Commissioner on the observation that in the absence of goods verification of the claim was not possible. He relied upon explanatory note to Heading 84.19 in the HSN which prescribed that metal tubes and pipes which had been bent or curved but not otherwise worked were not identifiable as parts or goods falling under that heading and therefore were classifiable separately. The importers then filed an appeal. The Commissioner (Appeals) examined the invoice, the drawings and also the chartered engineers certificate to the effect that they were identifiable parts of heat exchangers. He specifically mentioned that the finned tubes were of specific length numbering 370 pieces and that they were to be used directly in the heat exchangers without being subjected to any other process. He took cognizance of the Tribunal judgment in the case of BHEL v. C.C. 1984 (16) E.L.T. 355 (Tribunal) and held that the correct classification was as claimed by the assessees. He allowed the appeal with consequential relief. The Commissioner of Customs filed an appeal against this decision and also the present application seeking stay of operation of this order.
3. After hearing Shri Deepak Kumar, learned SDR for the appellant Commissioner and Shri Prakash Shah, learned Advocate for the respondents, it appeared that at this stage itself the main appeal could be taken up for decision. Both sides agreeing, this was done.
4. We have carefully considered the submissions made before us. The appeal memorandum proceeds on the assumption that the impugned goods are metal tubes and pipes which have been bent or curved and continues to rely upon the HSN specification cited by the Additional Commissioner in making the order-in-original. We have seen the invoice, which describes the contested goods as "finned tubes". We have seen the pictorial representation of the contested goods, which shows existence of "fins" on the surface of the entire length of the tube. We have also seen a schematic diagram of the heat exchanger in which the tubes are fitted and where the tubes are described as parts. On examination of the details we are satisfied that the contested goods are not merely tubes or pipes bent which are mentioned in the excluding category of Heading 8490 of the HSN.
5. We have also seen copy of the Tribunal judgment relied upon by the Commissioner as also citation of the judgment in the case of Indian Sugar & General Engg. Co. v. C.C. -1999 (111) E.L.T. 860 in which identical goods were held to be parts of heat exchangers. Shri Deepak Kumar has shown us the copy of the Tribunal judgment in the case of Tamil Nadu Electricity Board v. Collector -1992 (58) E.L.T. 101 which was referred to in the appeal memorandum without specifying as to where it was reproduced. We have seen the judgment. The goods under scrutiny of the Tribunal in the cited judgment were tubes merely cut to specific sizes. It is in this situation that the Tribunal ruled that they would continue to be classified as tubes. We find that in the contested goods before us the processes undertaken went way beyond that of simply being bent etc. and that these processes converted the tubes into identifiable parts of heat exchangers.
6. On examination of the documents, the findings of the Commissioner (Appeals) and the appeal memorandum, we find that the order of the Commissioner (Appeals) sustains. The appeal is accordingly dismissed. The stay application also stands disposed of.