9911796707
TMI Blog1990 (7) TMI 239X X X X Extracts X X X X X X X X Extracts X X X X ..... January, 1985. The Customs authority at Jaipur classified the goods under Heading No. 40.05/16(1) of the Schedule and under Item No. 16A (4) of the First Schedule to the Central Excises Salt Act, 1944, for the purpose of levy of additional duty of customs. A refund claim on the basis that the goods were classifiable under Heading 59.16/17 of the Customs Tariff Schedule was dismissed by the Assistant Collector on 17-7-1985. In appeal, the appellants pleaded for classification of the goods under Heading 84.45/48 as parts of stone-working machinery, or alternatively under Heading 40.05/16. The appeal did not meet with success and hence the instant appeal. 3. We have heard Shri D.N. Mehta, learned Advocate, for the appellants, and Shri S. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6. Having regard to the nature of the goods, Item 16A(4) has to be ruled out. 7. Shri Mehta s contention is that the goods correctly fell under the residual head : Item No. 68. In support, he relies on the Tribunal s decision in International Conveyors Ltd. v. Collector of Central Excise Bombay -1983 (13) E.L.T. 1216. This decision was with reference to Item 19III of the Central Excise Tariff which is not in pari materia with Item No. 16A. We do not see the relevance of this decision. However, for want of a specific item to cover the goods none has been pointed out to us - they should fall under the residual Item No. 68. 8. Turning to the classification of the goods under the Customs Tariff Schedule, the competing headings are 40.05 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9. Shri Mehta submitted that the subject goods would fall within the description textile articles, of a kind commonly used in machinery or plant in Heading 59.16/17. However, this has been ruled out by the Collector by reliance on Chapter Note 2(c) to Chapter 40. According to this note, Chapter 40 does not cover inter alia woven textile fabrics (other than goods of Heading No. 40.05/16) impregnated, coated, covered or laminated with rubber : (i) weighing not more than 1.5 Kgs. per sq. metre; or (ii) weighing more than 1.5 Kgs. per sq. metre and containing more than 50 per cent by weight of textile material; and articles of those fabrics. Such goods, according to the said note, generally fall within Section XI under which Chapter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r. From the catalogue of the machine, it is evident that the air buffers are parts of the stone working machine. The invoice shows the goods to be comprised of fabric and rubber. The examples given in Chapter Note 4(b) to Chapter 59 does not stop with gaskets, washers and polishing discs. Its also says : other machinery parts . These do not necessarily have to be of the nature exemplified by gaskets etc. Chapter Note 2(b) to Chapter 40, as noted earlier, excludes from the said chapter certain textile fabrics and articles made therefrom. Since the Revenue has chosen to classify the goods under Heading No. 40.05/16, it must show that the goods are not covered by the exceptions. The onus cannot be shifted to the assessee. Nor has the Reven ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tain specified ones, required for the purpose of initial setting up; or for the assembly and manufacture of any article falling under one of the enumerated headings of which one is 84.45/48 from basic customs duty in excess of the rate applicable to the article when imported complete. This is subject to the conditions laid down. There is no evidence to show that these conditions have been complied with or that the benefit of this notification claimed. The finding of the Collector (Appeals) that the notification would not apply if the parts in question do not fall under one of the headings specified in the notification is, of course, not correct. It has been held by the Tribunal in Bharat Earth Movers Ltd. v. Collector of Customs, Madras -19 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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