Custom, Excise & Service Tax Tribunal
Commissioner Of Customs (Port), ... vs M/S. Simplex Electrical Engineering ... on 12 February, 2010
CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
EAST ZONAL BENCH:KOLKATA
CUSTOMS APPEAL NO.110/09
[ARISING OUT OF ORDER-IN-APPEAL NO.KOL/CUS/CKP/309/2008 DATED 29.09.2008 PASSED BY COMMISSIONER OF CUSTOMS (APPEALS), KOLKATA]
FOR APPROVAL AND SIGNATURE OF
SHRI S.K.GAULE, HONBLE 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
Authorative report or not?
3. Whether His Lordship wishes to see the fair copy
of the Order?
4. Whether Order is to be circulated to the Departmental
Authorities?
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COMMISSIONER OF CUSTOMS (PORT), KOLKATA APPELLANT(S) VERSUS M/S. SIMPLEX ELECTRICAL ENGINEERING PVT. LTD.
RESPONDENT(S) APPEARANCE:
SHRI R.K.CHAKRABORTY, S.D.R. FOR THE APPELLANT (S);
SHRI K.K.SANYAL, CONSULTANT FOR THE RESPONDENT(S).
CORAM:
SHRI S.K.GAULE, HONBLE MEMBER (TECHNICAL) DATE OF HEARING/ DECISION: 12.02.2010 ORDER NO Per SHRI S.K.GAULE Heard both sides.
2. Revenue is in appeal and has challenged the Commissioner (Appeals) Order No. KOL/CUS/CKP/309/2008 DATED 29.09.2008. Commissioner (Appeals), vide the aforesaid Order, granted the benefit of exemption Notification No.10/2006-CE dated 01.03.2006 to the Respondent. The said benefit was earlier denied by the lower Adjudicating Authority.
3. The Respondent imported a consignment and described their product as Centri Water Pumpset comprising of D.Engineering R176RC4 in the Bill of Entry. They classified the same under Chapter Tariff Heading:84137010 and claimed the benefit of the Notification No.10/2006-CE dated 01.03.2006 (Sl. No.17). The said Notification granted exemption to power-driven pumps primarily designed for handling water, namely, centrifugal pumps (horizontal or vertical), deep tubewell turbine pumps, submersible pumps, axial flow and mixed flow vertical pumps. The lower Adjudicating Authority assessed the Bill of Entry by denying the benefit of Notification No.10/2006-CE. The Commissioner (Appeals) while relying upon the Boards Circular No.224/58/96-CX dated 26.06.96 allowed the benefit of the said Notification.
4. The contention of the Appellant is that the benefit of the Notification has been allowed on the basis of Boards Circular and the Circular was merely to settle a classification dispute. The Appellant while relying upon definition in Wikipedia INTERNET encyclopaedia, contended that even if centrifugal pumps can be powered by other prime-movers, the term, power-driven exclusively meant those pumps that run on electric power. The benefit of the Notification is available to the manufacturers who manufacture power-driven pumps and I.C. Engines together. The imported goods were brought under cover of invoices issued by a trader and not by a manufacturer and that too, where P.D. pumps and diesel engines have been brought separately. They also contended that mere classification under Chapter Heading 84.13 does not necessarily follow that the same goods automatically qualify for the benefit of the Notification No.10/06-CE. The Boards Circular settled the classification dispute which was not relevant to the issue. The Appellant contended that the benefit under Sl.No.17 of Noftn. No.10/2006-CE is to be given, if the pumps are driven exclusively by electric power. The benefit of the said Notification is not extendable to the manufacturer who does not manufacture pumps and I.C.Engines together and clears them from the same unit.
5. The Contention of the Respondent is that the C.B.E.C. Circular No. 224/58/96-CX dated 26.06.96 relied upon by the Commissioner (Appeals), clearly clarifies that pump i.e.I.C.engine may be treated as an integral part of power-driven water pump. This conclusively proves that the power-driven water pump is not necessarily required to be driven by electric power. It may also be driven by diesel engine. Contention of the Respondent is that pump engines are manufactured separately by different manufacturers showing them complete pump-set.
6. I have considered the submissions and carefully verified the records of the case. I find that the Respondent has declared the goods in the Bill of Entry as Centri Water Pumpset comprising of D.Engineering R176RC4 which is not disputed by either side. Therefore, the contention that P.D. pumps and diesel engine have been brought separately, is contrary to the facts on record. The appellants contention that the term, power-driven exclusively meant those pumps that run on electric power, is not keeping in pace with the time. Further, the Commissioner (Appeals) granted the benefit under Sl.No.17 of Notfn. No.10/2006-CE, while relying upon the Boards Circular dated 26.6.96. Para 2 and 3 of the said Circular reads as under:
2. The matter has been examined in depth. Board in its F.No. 151/13/92-CX.4 (Pt.) (Circular No. 11/11/94, dated 2-2-1994) has held that electric motors or rotors or stators are components parts of P.D. Pumps. Following the same analogy, the prime mover, i.e. I.C. Engine may be treated as an integral part of P.D. Pump. The Board takes note of Note 3 of Section XVI of Central Excise Tariff which states that composite machines consisting of two or more machines fitted together to form a whole and other machines adapted for the purpose of performing two or more complementary or alternative functions are to be classified as if consisting only of that component or as being that machine which performs the principal function. As the principal function of a pump set is that of the pump, the pump set is rightly classifiable under Chapter sub-heading 84.13.
3. Hence, the Board is of the view that Power Driven Pump Sets are classifiable under Chapter Heading 84.13 and if such Power Driven Pump Sets are primarily meant for handling water, the benefit of Notification No. 56/95, dated 16-3-1995 will be admissible to the whole pump set. From the above, it is clear that the Boards Circular not only deals with classification but also underlines that I.C. Engine may be treated as an integral part of P.D. Pump. Moreover, diesel engine is an I.C. engine, is not in dispute. The Notification exempts power-driven pumps primarily designed for handling water, namely, centrifugal pumps (horizontal or vertical), deep tube-well turbine pumps, submersible pumps, axial flow and mixed flow vertical pumps.
7. In view of the above circumstances, I do not find any infirmity in the Commissioner (Appeals) Order. The Appeal is devoid of any merit. Accordingly, the impugned Order is upheld and the Revenues Appeal is dismissed.
Pronounced and dictated in the open court.
Sd/-
(S.K.GAULE) MEMBER (TECHNICAL) dutta/ 4 CUSTOMS APPEAL NO.110/09 4