9911796707
TMI Blog1994 (3) TMI 199X X X X Extracts X X X X X X X X Extracts X X X X ..... 4, as against the claim of the appellants for classification under Tariff Item 68. The assessee was issued with a show cause notice dt. 8-8-1986 calling upon them to explain as to why the sintered bushes having wall thickness less than 3.65 mm classified earlier as falling under 34A provisionally approved should not be considered as final approval and as to why the differential duty at appropriate rate on the clearances of these sintered bushes cleared during the period from 1-3-1983 to 28-2-1986 should not be recovered under the bond executed by them and under the provisions of Section 11A of the Act on the following ground : ******* 3. The appellants resisted the issue of show cause notice by filing a detailed reply supported by several experts opinion as well as affidavits. It is the assessee s case that the sintered bushes and parts came under the ambit of Central Excise from March, 1975. From 5-9-1975, a portion of the sintered bushes and parts which were for Motor Vehicle applications were classified as Unspecified parts" under T.I. 34A. The rest were treated as falling under T.I. 68. It is stated by them that despite thin walled bearing being a specified item under T.I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad clearly stated that these bearings cannot be classified as thin-walled bearings. The assessee are relying on the above note of ARAI and the report of the College of Engineering. They submit that the reports being in their favour, the goods in question should not be classified as thin walled bearings under TI 34A. They further pointed out that the bushes manufactured by them are totally different from thin-walled bearings which were specified in IS : 4757 and 4774. They stated that their bushes are specified in IS : 3980. They also referred to the minutes of the meeting under the Chairmanship of Shri S. Venkatesan, Member, Central Board of Excise Customs who by their note, had stated that for deciding a bearing as thin-walled bearing only 3/16th inch wall thickness should not be considered but should be seen in relevance with the diameter of the bearing. The assessee had taken the affidavits of Shri Sardari Lal W. Kochhar and Shri Nitin R. Patel. 6.to 10.******* 11. We have heard Shri C.M. Korde, Ld. Advocate for the appellant and Shri K.K. Dutta, ld. JDR for the Revenue. The Ld. Advocate pointed out that the Department had proceeded on three grounds namely : 1. Report ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SI Specifications and has also totally mis-understood the writings on the subject in the books referred to by him. The ld. Advocate pointed out to the opinion the assessee had obtained from the author of the book itself namely Dr. B.K. Agarwal and submitted that Dr. B.K. Agarwal had categorically stated that the item in question cannot be considered as a thin-walled bearing. The ld. Advocate submitted that the Assistant Collector had not given any finding on what a thin-walled bearing was. He had skept to give a categorical finding on this question and had also not given any finding as to why thickness of less than 3.65 mm alone should be considered as thin-walled bearing. He submitted that the entire order although a lengthy one, did not help the department at all and that the department had not discharged the burden of classification. He submitted that the Collector had filed an affidavit in response to the opinion of Dr. B.K. Agarwal. However, this affidavit was also no sustained through the department as the Collector had not come to counter any point given in the opinion by Dr. B.K. Agarwal or with regard to the goods in question satisfying the ISI Specification. He submitted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y. (xii) Thin-walled bearings. Explanation I. - The expression Motor Vehicles has the meaning assigned to it in Item No. 34. Explanation II. - The expression Tractors shall include agricultural tractors". In order to answer this tariff description, undoubtedly, the department has to place the experts opinion besides the commercial understanding. In this case the department proceeded on the basis of the opinion of the College of Engineering and that of the note of the Automotive Research Association of India, Pune dt: 21-10-1983. As regards the market enquiry referred in the show-cause notice, the department has not produced any evidence worth the name. Now, it has to be seen as to whether the evidence referred in the show-cause notice is in favour of the department. The definition of thin-walled bearings as bearing in the book Plain Bearing Design Handbook by Shri R.J. Welsh published by Butterworths at page 67 in Chapter 8 states Thin-walled Bearings as follows : ******* From the reading of the above definition, one point is very clear that thin-walled bearings are essentially flexible and in use are clamped firmly in their housing, the shape of which maintains ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the features of thin-walled bearing and have shown that the product in question does not satisfy the said understanding of a thin-walled bearing. We have already extracted the opinion of the College of Engineering in extenso and a reading of the same clinches the issue in favour of the appellants. The next opinion obtained by the Department is that of Automotive Research Association of India. This is an opinion which is in the nature of commercial and trade understanding. We have already extracted the said opinion and even as per the said opinion, the product does not satisfy the commercial understanding of a thin-walled bearing, as commonly understood in the trade. The assessee had also relied on the affidavit of Shri Sardari Lal and that of Shri Nitin R. Patel. They have also clearly stated as to what is the understanding of a thin walled bearing in trade parlance and have categorically stated that the product does not satisfy the said understanding. The other point on which the Assistant Collector has proceeded, is the understanding of the literature, with specific reference to the book written by Dr. B.K. Agarwal. The assessee has taken the opinion of Dr. B.K. Agarwal and the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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