Custom, Excise & Service Tax Tribunal
The Commissioner Of Central Excise vs M/S Origin Mouldings Pvt. Ltd on 23 February, 2012
THE CUSTOMS EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, SOUTH ZONAL BENCH, WTC BUILDING, FKCCI COMPLX, K.G. ROAD, BANGALORE Date of hearing: 23.02.2012 Date of decision: 23.02.2012 Appeals No. E/639/2003 (Arising out of order-in-appeal No: 90/2003 dated 22/04/2003 passed by the Commissioner of Central Excise (Appeals) Bangalore) For approval and signature Honble Mr P.G. Chacko, Member (Judicial) Honble Mr. B.S.V. Murthy, 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 The Commissioner of Central Excise, .Appellant Bangalore Vs. M/s Origin Mouldings Pvt. Ltd. Respondent
Present for the Appellant : Mr.Ganesh Haavanur, A.R. Present for the Respondent : Mr. B. Anil Kumar, Adv Coram:
Honble Mr. P.G. Chacko, Member (Judicial) Honble Mr. B.S.V. Murthy, Member(Technical) ORDER No______________________ The short question arising for consideration in this case is whether bobbins (or formers) manufactured by the assessee during the material period (1999-2000) is classifiable as transformer parts under sub-heading 8504.00 as claimed by the assessee or as other articles of plastic under sub-heading 3926.00 as claimed by the revenue. On a perusal of the records and hearing both sides, we are of the view that this classification dispute revolves around determination of the question whether the above goods were manufactured by the assessee for exclusive use as parts of transformers. The learned counsel for the respondent has cited a few decisions on the necessity of the use of the goods to be ascertained. A decision cited by the learned Additional Commissioner (A.R.) viz. Commissioner of Central Excise Bangalore vs. Gargi Enterprises [2004(171)E.L.T.276(Tri-Bang)] is on a similar classification issue and the decision was to classify spools, bobbins and formers under SH 8504.00 on the basis of the user test. On a perusal of the cited decision, we find that the user test was meticulously applied and accordingly it was found that the spools bobbins and formers were exclusively used as parts of transformers and hence classified under SH 8504.00.
2. From the records of the present case, apparently there is no evidence of the user test having been properly applied. Hence, we find this case fit for remand to the original authority. In the result, the impugned order is set aside and this appeal is allowed by way of remand to the original authority for a fresh decision on the classification issue on the basis of the evidence to be adduced by the assessee. In this connection, it is open to the adjudicating authority to consider the case law on user test as applied to similar disputes. It is further made clear that all the ancillary issues are also left open. Needless to say that the assessee should be given a reasonable opportunity of adducing evidence and of being personally heard.
(Pronounced and dictated in open Court)
(B.S.V.MURTHY) Member(Technical)
(P.G.CHACKO) Member (Judicial)
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