9911796707
TMI Blog2006 (10) TMI 307X X X X Extracts X X X X X X X X Extracts X X X X ..... n "Other Agriculture, Horticulture, Forestry, Poultry Keeping Machinery including Germination Plate fitted with mechanical part of rearing and laying unit or batteries such as tops, bottoms, partitions made from galvanized and stainless steel wire". 2. We have heard the learned JDR who relied on the grounds made in the appeal memo. The appeal memo contests the classification adopted by both the authorities under the Chapter Sub-Heading 8436.00 and granting the benefit of exemption notification. 3. Revenue seeks the classification under Chapter Heading No. 7314 as "Articles of Iron and Steel wire, such as welded mesh for commercial purpose and construction purpose in the form of sheets and rolls". They have not given any reasons for classification under this heading. There is no evidence of market, trade and commercial understanding with regard to the item to be treated as falling under Chapter Heading No. 7314.00. 4. The learned Counsel files detailed reply and relies on large number of judgments to contend that the item has been properly classified under Poultry Keeping Machinery (Equipment). The HSN note also supports their plea. He also refers to the tribunal r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case. The Tribunal in that case has taken the decision to uphold the adjudicating authorities decision without going into the details of the case or the merits of the case that have been presented in the instant case and based their order on CBEC Circular No. 36/CX/4, dated 31-8-90, in which the board has issued a clarification that equipment without any mechanical function are not considered as poultry keeping machinery and are rightly classifiable according to the constituent material. This circular is against the Section note No. 5 of the Section XVI of the Central Excise Tariff Act, 1985 wherein equipment is specifically included in the definition as machine and therefore cannot be considered as a legal circular. Moreover, when the battery of cages itself is figuring in the HSN notes as includible in the heading CETH 8436 the intention of the circular is confusing and as the circular is vague, it is not binding to decide on the classification and hence, the classification of the impugned goods should be decided on merits considering the properties of the impugned goods, the relevant tariff heading and the HSN notes guiding the tariff entry. The Supreme Courts decision in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he impugned goods are parts of general use. The Tariff Heading CETH 8436 reads as follows: " Other agricultural, horticultural, forestry, poultry keeping or bee-keeping machinery, including germination plant fitted with mechanical or thermal equipment; poultry incubators or brooders" and the HSN explanation to CHSH 8436 given at page No. 1318-HSN states that the term "poultry incubators or brooders" with relevance to the impugned goods includes among other equipment "Rearing and laying units or "batteries", large installations equipped with automatic devices for filling the feeding troughs, cleaning the floors and collecting the eggs". The dictionary meaning of the word 'battery' relevant to poultry industry is "series of cages for the intensive breeding and rearing of poultry or cattle" and hence the word battery includes the impugned goods, which are parts for making cages. In fact, the entire battery is made up only of the impugned goods. The parts of the said batteries are also covered in the said headings subject to general provisions relating to classification of parts under the General explanatory notes to Section XVI as per the HSN notes on 'parts' of the machinery covere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in accordance with the section notes 4 to Section XVI of the Central Excise Tariff Act, 1985 also, the impugned goods merit classification under CHSH 8436. To sum up, the goods are parts of batteries of bird cages used in poultry' farms. The batteries are covered under CHSH 8436.00 by virtue of the HSN notes for the chapter and the parts of the battery of cages are covered in the said heading in terms of the HSN notes with regard to parts of machinery falling under CHSH 8436 and general provisions to Section XVI in the HSN. In view of the above discussions about the commercial sense, trade parlance and marketability of the goods, the functionality which can only be understood as Poultry keeping and the explanatory notes to CETH 8436 given in the HSN as detailed above, and ratio of the various case laws cited, I am of the view that the impugned goods were rightly classified under CHSH 8436 of the Central Excise Tariff Act, 1985. ORDER I reject the appeal filed by the department. 6.1 The Original Authority also decided the issue in assessee's favour. We are of the considered opinion that the Revenue has failed to establish that the poultry equipment can be treated as artic ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
