Custom, Excise & Service Tax Tribunal
M/S. Rehau Polymers Pvt. Ltd vs Commissioner Of Customs (Import), ... on 14 November, 2008
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, WEST ZONAL BENCH AT MUMBAI
COURT NO. II
APPEAL NO. C/173/08 Mum
(Arising out of Order-in-Appeal No. 121/2007 Misc. ACC dated 5th December, 2007 passed by the Commissioner of Customs (Appeals), Mumbai).
For approval and signature:
Honble Shri. P.G.Chacko, Member (Judicial)
and
Honble Shri K.K. Agarwal, Member (Technical)
1. Whether Press Reporters may be allowed to see : No
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 : Yes
of the Order?
4. Whether Order is to be circulated to the Departmental : Yes
authorities?
M/s. Rehau Polymers Pvt. Ltd.
:
Appellant
Versus
Commissioner of Customs (Import), Mumbai
Respondent
Appearance Shri Prakash Shah, Advocate for Appellant Shri Manish Mohan, SDR for Respondents CORAM:
Shri. P.G.Chacko, Member (Judicial) Shri. K.K. Agarwal, Member (Technical) Date of Hearing : 14.11.08 Date of Decision :..
ORDER NO.
Per : Shri. K.K. Agarwal, Member (Technical) Brief facts of the case are that the appellant has imported extrusion dies and classified the same under Chapter Heading 8480.7900 and claimed exemption provided under Sl.No.65 of Notification 85/2004 which exempted the goods falling under Chapter Heading 8480.79. Exemption was denied to them by both the lower authorities who held that the goods are classifiable under Chapter Heading 8477.9000 and therefore the exemption cannot be extended.
2. Ld. Advocate for the appellant submitted that Commissioner (Appeals) has erred in classifying the imported dies under Chapter Heading 8477.9000 by relying upon Section 2(b) of Section XVI. The goods in question are nothing but moulds as moulds and dies are synonymous. In this regard, attention was invited to HSN Explanatory Note to Chapter Heading 8480 which states in general the essential function of mould is to retain the material in pre-determined shape while it sets; some mould also exert a certain pressure on the material. But the heading excludes stamping dies of heading 82.07 since these shapes the materials solely by means of a powerful blow or compression e.g. dies for stamping out sheet metal goods. It was submitted that as per this explanatory note, only stamping dies are excluded and not other dies and therefore dies are nothing but mould which are classifiable under Chapter Heading 84.77 and are entitled to exemption. Once the same are considered to be as moulds, Section 2(a) of Section XVI would be relevant which states that parts which are goods included in any heading of Chapter 84 are in all cases to be classified in their respective headings. Since moulds are specifically included in Heading 84.80, the same are classifiable under Heading 84.80. In this regard he referred to the decision of Honble Supreme Court in the case of CCE vs. Delton Cables Ltd. as reported in 2005 (181) ELT 373 (S.C.) wherein it was held that one cannot therefore directly jump over to Section Note 2(b) without exhausting the possibility of Section Note 2(a). Since in their case Section 2(a) is the relevant Section, Note 2(b) cannot be applied. Ld. Advocate referred to the findings of the adjudicating authority, wherein it has been stated that since in case of dies the goods are obtained in running length it cannot be considered as mould and submitted that the adjudicating authority has not cited any authority for drawing inference that if the goods are produced in a running length then the same cannot be considered to have been manufactured by moulds. It was further submitted that a mould cannot be considered as a part of machinery and in this regard he referred to the decision of the Tribunal in the case of Fordham Pressing (I) Pvt. Ltd. vs. CCE, Mumbai III 2001 (133) ELT 775 (Tri. Del) wherein it has held that machinery is complete even without the mould and it cannot be said that they are a part or even an accessory of the machine producing ceramic tiles. He submitted that dies which are nothing but mould, cannot be considered as parts of extruding machine as has been held by the Commissioner. The goods have cavity and therefore cannot be considered as mould as has been observed by the Tribunal in the case of Alok Leasing P. Ltd vs. CC, Sheva, Mumbai . - 2005 (190) ELT 92 (Tri.).
3. Ld. DR submitted that it is an admitted fact that the dies are meant for use in extruding machines. He explained the process of extrusion by referring to the extracts of Wikipedia, which says that extrusion is a process used to create objects of a fixed cross-sectional profile. A material is pushed or drawn through a die of the desired cross-section. Extrusion may be continuous (theoretically producing indefinitely long material) or semi-continuous (producing many pieces). The extrusion process can be done with the material hot or cold. In case of plastic, extrusion commonly uses plastic chips or pellets, which are usually dried in a hopper before going to the feed screw. The polymer resin is heated to molten state by a combination of heating elements and shear heating from the extrusion screw. The screw forces the resin through a die, forming the resin into the desired shape. The extrudate is cooled and solidified as it is pulled through the die or water tank. In view of this it was submitted that extrusion dies and moulds are not synonymous as is being projected by the appellants. In case of mould, article in indefinite length cannot be manufactured as is also evident from the HSN Explanatory Note referred to by the appellants which says that the essential function of the mould is to retain the material in a pre-determined shape while its sets through. A mould should be capable to retain the material which is not so in case of die, where the material is not retained but passed / pushed through. Once a die is not considered as a mould it is to be classified under Chapter Heading 8477.90 as a part of extruders. In support thereof he referred to the decision of the Tribunal in the case of Alok Leasing P. Ltd (supra) wherein the appellants claim of classifying dies as mould under Chapter Heading 8480.10 was rejected and classification under Chapter Heading 8477.90 was upheld.
4. We have considered the submission.
5. We find that the appellants have placed their claim solely on the ground that moulds and dies are synonymous and in support thereof they relied on HSN Explanatory Notes which excludes only stamping die from its purview. We are unable to agree with this proposition as this explanatory note says that the essential function of the mould is to retain the material in a pre-determined shape while it sets. This function evidently is not performed by die which only imparts a uniform cross-section. Therefore, we are agreement with the view of the Tribunal in the case of Alok Leasing P. Ltd (supra) and hold that the dies will be classifiable under Chapter Heading 8477.90 and not as mould as claimed by the appellants. In view of this, we uphold the order of Commissioner (Appeals) and dismiss the appeal.
(Pronounced in open Court on )
(P.G.Chacko)
Member (Judicial)
(K.K. Agarwal)
Member (Technical)
nsk
5