2007 (4) TMI 109 - AT - Central Excise

Classification - As per department free standing pre-fabricated relocatable public telephone booth is classifiable under Heading 73.08 not under Heading 94,06 of CET - Held that department contention was not correct and allowed the classification under Heading 94.06 of CET

Summary

Issues:
Classification of free standing pre-fabricated re-locatable Public Booth under Chapter Heading 73.08 vs. Chapter Heading 94.06.

Analysis:
The Commissioner initially classified the impugned goods, a 'Telephone Booth,' under Chapter Sub-heading No. 7308.00 instead of Chapter Sub Heading No. 9406.00. The Commissioner reasoned that the impugned goods did not qualify as buildings, as they were structures for making calls, not for dwelling. The goods were made of bars, rods, angles, etc., which matched the description of goods under heading No. 7308.00. The Commissioner held the appellants liable to pay differential duty based on this classification.

The Party contended that the Assistant Commissioner's order, classifying the goods under Chapter Heading 94.06, was correct. The Assistant Commissioner considered the goods as a pre-fabricated public telephone booth falling under specific heading 94.06. The Assistant Commissioner emphasized that the product resembled a cabin with relevant fittings, making it a pre-fabricated building as per Chapter notes of Chapter 9406 of the HSN. The Assistant Commissioner's decision was based on the mobility of the product, distinguishing it from static steel structures under Chapter 7308.90.

In response to the above contentions, the Learned DR argued that the goods should be treated as parts of iron/steel structures for classification under heading 73.08, citing the Larger bench judgment in Mahindra & Mahindra Ltd. v. CCE, Aurangabad. However, the Tribunal noted that the larger bench judgment did not concern the classification of pre-fabricated structures but focused on the excisability of movable vs. immovable iron/steel structures.

After considering the submissions, the Tribunal found that the impugned goods, i.e., the Telephone Booth, fell under Chapter Heading 94.06 as a pre-fabricated building. The Tribunal agreed with the Assistant Commissioner's reasoning, emphasizing the specific heading for pre-fabricated buildings and structures in the HSN Explanatory notes. Consequently, the Tribunal set aside the Commissioner's order and allowed the appeal in favor of the Party, granting consequential relief if applicable.