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TMI Blog1990 (7) TMI 208X X X X Extracts X X X X X X X X Extracts X X X X ..... ine; (ii) Extension of project importation concession. In respect of the second contention, Shri M.C. Kothandaraman, Ld. Consultant stated that he is not pressing for this concession and would be limiting the appeal only to the disputed classification. The Collector (Appeals) in his Order No. C3/188 234/1986 dated 23-04-1986 has disposed of two orders of the Assistant Collector, Order No. S-59/239/85 Ap.Gr.C. dated 09-12-1985 and Order No. S-49/155/85 Gr.E. dated 14-11-1985. The issue to be now resolved is whether the machine which was imported viz. Writegen Remixer Machine is classifiable under Heading 84.23, 84.56 or 84.59. The assessment under 84.66 has not been pressed and is therefore not dealt with. 4. The machine as per appellants contention is a compact and sophisticated device for excavation of roads, laying of mixed material and rolling of road surface all built into one compact piece. The machine excavated the roads with the help of Scarifier after heating the road surface with the help of infra red heater. After excavation the material travels into mixing unit (Pugmill) where new material is also added. The resulting new asphalt mix is then forced from the Pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xing device for mixing of the old material with bitumen. (v) Tamping device. Here the mixing of Asphalt (along with other old materials) cannot be considered as a machine producing a commodity and the original material remixed does not lose their identity. Hence, it falls outside the purview of 84.59(2) C.T.A. C.C.C.N. Explanatory Notes under 84.59(Page-1367) reads Machines whether or not self-propelled, for spraying gravel on road or similar surfaces and self-propelled machines for spreading and tamping bituminous road surfacing materials." 5. In their appeal before the Tribunal the appellants have submitted the following salient features of the machine :- (i) Hot mixing process; (ii) Extraction of inplace material from the complete surface of the road with the aid of scarificing and profiring; (iii) Recycling of old material by adding in pre-determined proportion in the heated pugmill mixer; (iv) Ready mixed product to be delivered for laying on the surface with adjustable screed with sweeper; (v) Paving and tamping; (vi) Finishing and pre-compaction. Further, the machine in question consists of the following assemblies and sub-assemblies/units in-built to ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erred to above, the machine in question will be eligible for assessment under Heading 84.23 or 84.56 depending upon the function/functions that can be considered as the main function of the machine. Out of the four main functions of the machine listed i.e., excavating, levelling, tamping and mixing, three functions are covered by the Heading 84.23. The appellants were therefore claiming assessments of the machinery under that heading right from the date of filing the bill of entry. Even if it is considered that the main function of the machine is that of a unit as a remixer recycling in situ unit, the correct classification would be Heading 84.56. The rate of duty applicable under this heading is the same as that of 84.23." The appellants have further contended that the reasons for not applying the Heading 84.59 for the goods were on account of the fact that the Heading 84.59 covers machines and mechanical appliances having individual functions. The word individual, according to the Webster s New 20th Century Dictionary - unabridged - second edition, means a single person or thing i.e., one at a time or single distinct function. The machine for being classified under this head ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he claim for assessment under 84.23 was not agitated before the Assistant Collector, the claim now made was still within the time limit under Section 27 of Customs Act as duty was paid on 19-10-85 and the appeal was filed on 22-02-1086. He further contended that the appellant had declared in the Bill of Entry the Heading for purpose of assessment under 84.23 which was scored by the department and written as 84.59, as such he submitted that the appellants had all along been requesting for classification of their machine performing multi-purpose functions under Heading 84.23. Alternatively, he suggested the classification under Heading 84.56 as it was a mixing machine, it was a re-mixer re-cycling in situ unit and since that was the main purpose of the machine, it would fall under 84.56. The Heading 84.59 was a residuary item and only such of these machines which do not fit into any other heading are liable to be classified under Heading 84.59 and the Collector (Appeals) has not given a specific finding for assessment under Heading 84.59(1). He referred to the Supreme Court s decision in M/s. Bharat Forge Press Pvt. Ltd. v. Collr. of C. Ex. -1990 (45) E.L.T. 525 (SC) : Classific ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rying the pressure across the heater banks. The surface is loosened down to the required depth by means of scarifying tynes which have automatic depth control. The material is then planed off by a levelling blade and fed to the middle of the machine by an auger. This results in the formation of a level base. The material mass is then fed into a compulsory pugmill mixer where it is thoroughly mixed with the addmix fed in from the top and if necessary with a bitumen recycling agent. The resulting new asphalt mix is forced from the pugmill in a windrow and spread over the heated level base by means of an auger. The Remixer s combined tamping and vibrating screed then ensures that a level surface with a high degree of compaction is achieved. The screed has slope and grade control. After final rolling the resurfacing process is complete having achieved the desired asphalt mix characteristics and surface texture. This is a multi-purpose machine. As per Section Note 3 of Section XVI BTN and the Customs Tariff Act of India which is reproduced below: - Unless the Headings otherwise require, composite machines consisting of two or more machines fitted together to form a whole and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dustries and also covers machinery for mixing mineral substances, Sl. No. 6 page-1356 which is reproduced below :- Machines for mixing mineral substances (crushed or broken stone, gravel, limestone, etc.) with bitumen, for preparation of bituminous road-surfacing materials . Mixing with bitumen for preparation of bituminous road surfacing materials would get covered by this heading. It can, therefore, be held that the main purpose or function of the machine being mixing, the other functions are complementary and the machine would correctly fall under Heading 84.56. The Tribunal has already laid the principle that classification being a question of law can be raised at any stage of proceeding - 1984 (17) E.L.T. 368 (Tribunal), Collector of Central Excise v. M/s. West Glass Works, Firozabad. 9. Since the Heading 84.56 is found to be more appropriate, the classification under Heading 84.23 is not preferred, moreover the type of functions mentioned in that Heading are not the main functions. The lower authorities have held the Heading 84.59(1) as the more appropriate classification in view of the CCCN Explanatory Notes under 84.59 (page-1367) which is for Machines whether or no ..... X X X X Extracts X X X X X X X X Extracts X X X X
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