2017 (9) TMI 921 - CESTAT MUMBAI

Classification of goods - contract for complete installation of the lifts on lump sum basis - complete lift or parts/components - The goods purchased by the appellant are either directly taken to the site for installation or brought to the factory and then taken to the site for installation. After installation the lifts come in its existence as immovable property - whether the set of parts/components manufactured and cleared by them from the factory for the purpose of installation in one or more consignments would be classifiable under Heading 84.28 as lift/lifting machinery or as parts under heading 84.31 of the Central Excise Tariff Act, 1985? - rules of interpretation - Board's Circular No.16/89, dated 19-4-1989.

Held that: - It is seen that the matter has been remanded for consideration of defense of the appellants that the goods cleared by them have been tested only with reference to the product 'LIFT' but not with reference to the description 'LIFTING MACHINERY' appearing in the tariff heading 84.28 - It is apparent that the heading 84.28 covers lifting machinery, handling machinery, loading or unloading machinery. The heading 84.28 gives specific examples of such machinery as lifts, escalators, conveyors, teleferics. The argument of the appellants is that the product manufactured by them, together can be considered as 'Lifting Machinery'. The idea being that the lifting machinery is a broader term and would include in its scope not only lifts but all other machineries capable of lifting. Thus if the products manufactured by them together have essential character of a lifting machinery, it would be classifiable under heading 84.28 even if it is held that it does not have essential character of 'Lift'. The fact of the case is the appellants are getting orders for lifts. The products are custom made as per the needs of each of the buyer. The appellants are manufacturing a few item and they wish to call those items collectively as 'Lifting machinery'. They have, however, not come forward with any evidence that the said items manufactured by them together constitute a machine.

The role played by each such item manufactured by them in the whole scheme of things needs to be examined. The appellants have not shown as to how these individual items manufactured by them are capable of working as a machine. If these items manufactured by them are indeed capable of working together as a unit to be called a 'machine' needs to be ascertained. If these items are indeed capable of working together as a unit then the function that they can perform needs to be seen. What distinguishes the term 'machinery' from the term 'Lifting Machinery' is the ability of the items manufacture by them to interact with each other in such a manner that it can perform the function of lifting. Does that function amounts to lifting to enable the same to be classified as 'Lifting Machinery' needs to be established.

While a claim has been made by the appellants that the items manufactured by them can be classified as 'lifting machinery' they have not come forward with the nature of machine that will come into existence from the items manufactured by them and how it will be capable of performing the function of lifting. These are factual aspects aspects that need ascertainment - matter is remanded to the original adjudicating authority to examine the issues and pass fresh orders.

Appeal allowed by way of remand.