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TMI Blog1991 (10) TMI 127X X X X Extracts X X X X X X X X Extracts X X X X ..... ls, viz., (i) Starter Motor (ii) Alternator/Generator. It was contended by the appellants before the Assistant Collector that the vacuum pump alternator is used on the fuel efficient light commercial vehicles and it was a new design and the vacuum pump works in congruence with Alternators. It was also contended that the design of the Alternator was such that the extended shaft of the Alternator drove the vacuum pump mechanism. This vacuum source was used by the vacuum assisted brake system of the vehicle. It was further contended by the appellants in the write-up dated 22nd August, 1990 that the design of 3 HA 15 alternator helps in eliminating a separate drive mechanism for the pump by using alternator as the prime mover. The Assistant Collector had observed that entry in Sl. No. 2 of the said Notification No. 33/88 extended the benefit only to the electrical parts. Admittedly, alternator is an electrical part and its function is to generate alternative current. He had further observed that it was admitted by the appellants themselves that the function of the vacuum pump was to create vacuum and to facilitate effective braking. The vacuum pump drives mechanical power from the ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vacuum pump, the literature mentioned that it was a unit mounted on to the SRE bracket. The rotor of the vacuum pump was driven by the alternator shaft. It has 4 slots to accommodate the vanes. By varying the volume enclosed between the two vanes, air flows from the suction to delivery. Engine oil is supplied to the pump, for lubrication at a specified pressure and flow rate, through the oil inlet connector and the resultant vacuum is piped to the slump of the vehicle braking system. He had observed that it was clear that the vacuum pump was provided as a back-up for the braking system and the literature also gave necessary technical data separately for alternator and vacuum pump. He had further observed that issue for determination was whether parts required for the manufacture of such vacuum pump could be treated as parts required for the manufacture of alternators. He had observed that during the demonstrations of sample of alternator without the pump portion attached to it, it was evident that such alternator can be fitted into a vehicle and made functional. The vacuum pump when attached to such alternator in no way even remotely assisted in the functioning of the alternator. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scrap is what the officer thinks it is. The only restriction on the Controller giving a licence for export of scrap is that in his opinion is not usable in India; his opinion is final. For the purpose of his opinion he may describe or categorize the scrap in the manner convenient to him; but that does not make it any the less an exportable scrap. In the circumstances it must be held that the licence covers only the scrap not usable in India. The description of the scrap has no relevance to its exportability. Shri Lakshmi Kumaran referred to another decision of the Bombay High Court in the case of Bombay Chemicals Pvt. Ltd. v. Appellate Collector of Customs reported in 1990 (49) E.L.T. 190 where the Hon ble High Court had held that where the certificates were granted by Director General of Technical Development or Director of Industries under the Notification, the same were binding and conclusive, and the Department was not empowered to question such certificates. Shri Lakshmi Kumaran referred to Section Note (II) of Section 16 where it provides that unless the context otherwise requires, composite machines consisting of two or more machines fitted together to form a whole and other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Wipro Products v. Union of India reported in 1986 (25) E.L.T. 485 where the Bombay High Court had held that the diskettes are used on the machines so that the plans and designs are exhibited on the screen but that could not lead to the conclusion that it is a part of machine or accessory of the machine. The expression part of the accessory of the machine connotes that but for that part the machine would not function and the diskettes cannot be considered to be such a part. Shri Arora pleaded that in the present matter the alternator can function without vacuum pump. Shri Arora referred to another decision of the Supreme Court in the case of Dunlop India reported in 1983 (13) E.L.T. 1566 where it was held that when there is no reference to the use of adaptation of the article, the basis of end use for classification under a tariff entry was absolutely irrelevant. Shri Arora also referred to another decision of the Supreme Court in the case of Atul Glass Works v. Collector of Customs reported in 1986 (25) E.L.T. 473 where in para Nos. 8 and 9 the Supreme Court had held that the classification of goods is made on the basis of primary function. Shri Arora also referred to another de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elow :- 1.0 GENERAL DESCRIPTION 3HA 15-40 Alternator with vacuum pump is designed as a battery charging unit, for light commercial vehicles and commercial vehicles. A vacuum pump is attached with the Alternator to produce vacfitim, to assist braking system. Two models of 30 cc and 50 cc pumps are available to suit individual requirements. The Alternator is designed for two lug mounting and secured by two bolts, a mounting lug which provides a means of adjusting the drive belt tension. 2.0 DESCRIPTION 3HA 15 Alternator with vacuum pump is a 3 phase 12 pole machine revolving field with stationary armature type. Output control is effected by varying the rotor excitation. The output A.C. current from the sator winding is rectified by means of a full wave bridge assembly. Auxiliary diodes provide rectification of the field. A fuse is provided on the positive line to protect the diodes in the event of an inadvertent battery reversal. An electronic regulator is housed in the Alternator itself. This electronic regulator maintains the voltage and regulates the charging rate by switching the rotor field current as required. To accommodate the vacuum pump, the electrical terminations ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terature also gives necessary technical data separately for alternator and vacuum pump. The issue for determination is whether parts required for the manufacture of such vacuum pump can be treated as parts required for the manufacture of Alternators. It is not the appellant s case that the product alternator would not be functional without attachment of vacuum pump portion to it. On the other hand, during demonstrations of sample of the Alternator without the pump portion attached to it, it was evident that such alternator can be fitted into a vehicle and made functional. The vacuum pump when attached to such alternator in no way even remotely assists in the functioning of the alternator. It is the extended shaft of the alternator which is used for driving the Rotor of the vacuum pump. In other words, therefore, while the pump portion is dependent on functioning the Generator/Alternator, the Alternator is in no way dependent on the functioning of the vacuum pump." A simple perusal of the general description and description from the LUCAS-TVS Workshop Manual shows that a vacuum pump is attached with the alternator to produce vacuum to assist braking system and detailed examination ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nancial Corpn. v. Lotus Hotels Pvt. Ltd. and had argued that endorsement by the ITC authorities for the benefit of project import under Heading 84.66 of Customs Tariff Act, 1975 is sufficient enough for the grant of the benefit of the project import under Heading 84.66. The principle of promissory estoppel is not applicable in this case. The Customs authorities can come to an independent conclusion. The endorsement of the ITC authorities is not binding on them. The licences issued by the ITC authorities are to be seen only to the extent whether the importation is in accordance with the import policy or not. It is a settled law that the assessment has to be made by the customs authorities under the Customs Tariff Act in force at that time of importation. In the case of Photovisual, reported in 1984 (17) E.L.T. 443 (Tribunal) the Tribunal had held that the question whether a particular imported machinery would attract duty or not has to be decided by the Customs authorities. The letter granted by the Min. of Industries recommending a concessional customs duty would be in furtherance of the recognition of the appellant s establishment as a small scale industrial unit but would not he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in 1989 (42) E.L.T. 235 had held as under :- (5) We have considered the submission of both sides. We had occasion to inspect a sample of goods which was available on the file. The imported goods did not have any leads. Admittedly the leads have to be fixed by the importers. Shri Gopi Nath s argument in favour of application of Rule 2(a) of the Interpretive Rules (CTA) and for the application of the Section Note 2(a) of Chapter XVI cannot be accepted because we are interpreting a Notification and not the Tariff. On facts, as mentioned earlier, we agree with the submissions of the respondents that the imported goods are not resistors but part of resistors which ultimately go into a potentiometer. It is only resistors that are excluded from the concessional rate under Notification No. 172/77. In this view we dismiss the appeal. There is no classification dispute, the dispute is only in respect of extending the benefit of notification. Hon. Supreme Court in the case of M/s. Hemraj Gordhandas v. H.H. Dave, Asstt. Collector of C.E. Customs in para 5 had held that all that was required for claiming exemption in terms of these notifications was that the cotton fabrics must be prod ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the case of CIT v. Gangappa Cables reported in 116 ITR 778. In a recent decision the Patna High Court in the case of Hindustan Malleables Forgings Ltd. v. CIT reported in 191 ITR 110 had held that there is nothing in the Income Tax Act which restricts the Tribunal to the determination of questions raised before the departmental authorities. All questions, whether of law or of facts, which relate to the assessment of the assessee may be raised before the Tribunal. Since it was not agitated before the Asstt. Collector or before the Collector of Customs (Appeals), the alternative plea for extending the benefit of the notification has been taken under Serial No. 5 for the first time before the Tribunal as part of braking system, this fact was not examined by lower authorities whether the appellant is entitled to the benefit of Notification No. 33/88 under Sl. No. 5 and so it was not examined by the adjudicating authority or by the first appellate authority. We are of the view that ends of justice will be met if we remand this matter to the Asstt. Collector having jurisdiction to examine whether the vacuum pump which is part of the alternator imported by the appellants is entitled ..... X X X X Extracts X X X X X X X X Extracts X X X X
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