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TMI Blog2001 (11) TMI 845X X X X Extracts X X X X X X X X Extracts X X X X ..... ion was re-opened by the Central Excise authorities by issue of show cause notice dated 21-6-96 and subsequent show cause notices. By his order in original No. 38/Commissioner/97, dated 12-11-97 the Commissioner of Central Excise, Jamshedpur held that the correct classification of these goods was under Tariff Heading 8423. He confirmed differential duty demand and imposed penalties as a consequence of the decision that the correct classification was under tariff item 8423. Orders were passed on the subsequent show cause notices also on the same lines. The present appeals challenge these orders. 3. The items in question are individual machinery and equipment and are basically used for feeding raw materials into the manufacturing machinery. The original classification was under Heading 84.79 as machines and mechanical appliances having individual functions not specified or included elsewhere in Chapter 84 . The revised classification ordered under Heading 84.23 impugned order is as Weighing machinery ...... including weight operated counting or checking machine . 4. The Commissioner after perusing the literature and the evidence on record noted that these machines were used f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of discharge of materials. It has also been submitted that in the Trade and Commerce these equipment are not bought and sold as weighing machine; but as material handling equipment only. They have pointed out that more than half their customers are Public Sector units like Cement factories who buy these equipment for purpose of regulated feeding of materials into the cement making machinery and they do not buy the equipment as weighing machines for the purpose of weighing the raw material or finished products. It is also their submission that the evidence of technical authorities produced during adjudication proceedings clearly brought out that these are not weighing machines. The appellants have therefore, contended that the finding in the order is contrary to common parlance understanding, expert opinion and the language of the tariff heading which covered only machinery used for weighing. With regard to the scope of tariff Sub-heading 8423 they have pointed out that none of the criterion mentioned in the HSN explanatory notes would cover the raw materials feeding equipment in question. 6. The appellants have also relied on many decisions of the Supreme Court and other authori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ow rate. The flow meter is not a true gravimetric device as it depends on the mass flow rate and we can say that the force is not derived from the gravimetric acceleration but rather from the acceleration caused by the curvilinear action. But it may be difficult to say that it is volumetric either for the reason that when we take two materials with the same mass flow rate the equipment will indicate the same reading irrespective of their volumes, which means that it does not measure the volume either. Therefore, the machine can neither be classified as gravimetric or volumetric device . Upon careful perusal of the opinion we feel that the above opinion is to the effect that the equipment in question is not a machine for weighing either solids or liquids as it does not function as a gravimetric device (for solid) or a volumetric device (for liquid). The machine, therefore, cannot be called a machinery for weighment. Therefore, the expert opinion does not support the classification of the equipment as weighing machinery. 9. From the contracts and agreements for the goods also, it is clear that the goods are primarily purchased as equipment for ensuring regulated supply of materia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... because, on merits, these goods form part of weighing machinery, but because the authorities wanted to levy duty on these goods also at the higher rate of duty applicable under Heading 84.23. 13. We have already held that the main equipment in question are not classifiable under sub-heading 84.23. For that reason alone, these items would not be classifiable under tariff sub-heading 84.23 as parts. The demand, therefore, is not maintainable. With regard to the demand on bought out items, it is observed that these consist of :- Sl. No. Description of items 1. Load Cell in all description 2. Tachogenerator 3. Differential Counter 4. Other totaliser Counter 5. TPH Indicator/Rate Indicator Isolator 6. Endless Conveyor Belt 7. PVC Wiper 8. Snubber Capacitor 9. Fuses in all description 10. Connector Contactor 11. Blank PC Boards (Indigenous) 12. Imported PC Boards 13. Set Point Setter 14. Roller Idler 15. Special Instrument Cable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ager (Commercial) The Superintendent (Tech), Central Excise, Ranchi replied to the above letter of the assessee on 13-9-88 as under :- Sub : Permission for resale of inputs on payment of duty under Rule 57F(i)(ii). Dear Sir, Please refer to your letter No. AM/ds/133/88-89, dated 10-8-88 on the above subject. The Assistant Collector, Central Excise, Ranchi has been, pleased to grant your permission for resale of the inputs included in the list enclosed with your above letter under reference under Rule 57F(i)(ii) of the Central Excise Rules, 1944 under the power vested upon him vide the Collector, Central Excise, Patna s Notification No. 3/3-CX/86, dated 16-4-86 subject to the fulfillment of all conditions under the above mentioned rule to the satisfaction of your range Superintendent . Yours faithfully, Sd/- Superintendent (Tech), Central Excise, Ranchi. 15. From the above correspondence, it is clear that the appellants were selling some of the goods as spares with the permission of jurisdiction officers. Since these items were not the appellants manufacture, no liability to pay duty arose because duty of excise is contingent upon manufacture. In such a situation, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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